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*,* FoMi PROSFBCTtTS ON AfFUCATION. 


ENCYCLOPEDIA 
FOKHS & PRECEDENTS 

nv SOME ov 


The most Eminent Conveyancing and Commercial CounseL 


CNDKK Tllli CKNKKAL KDITOKSHIP OF 

^ ARTHUR UNDERHILL, M.A., LL.D., 

OTCK OF THt: OONVKYAXCINO COUNSKL TO THE COURT, 

' Auilifn' of •• 7 V i.<oe of atid “A on, the Saiilef} hind Arts^' clr. 

Fishi;ftm Mhdifayc." 


As.^JisTANT Eiiitoks: 


HAROLD B. COM PAS. of llie fnner Temple, and 

' HUMPHREY It. KINO, B.A., LL.C., of (he Innev Temple, 
Banisteii?-at-L<iw. 


^Vltli xt'o A«»l»iaiive <it 1 lie fnlinwhiy CONSULTIHO EDITORS, wliu Wnvi) lo give tlwir 

! Advice <ni juiy iu4:its or OiKiculi v tliar. iiiu v arise. 


\V. D. RAWLINS, K.a, 

Auikof of "•The SiH'i'tfic Per/onmnet: of 
Conintcts, im:* 

A. MAOMOURAN, K.C., 

Kilitiir of'‘ hnmUy-i Pnolic l/cMIi." 

T. II. CARSON, K.C., 

hUttir of “ 2’Mdor> UadUoj Coses Oil 
Vu»vri/inid ihj^ flc"' 

J. SAVILL VAIZEY, 

Of iho jMIdillo Uiin'isior-:it.-l«aw, 

-iMfAiH* of "Thf Law of 

S. P. BUTLER, 

01)6 ul Llie CouvcyiiiiclMiif Coun.cel to the Court, 


W. FAWCETT, 

Of lilnRoIii'.s inn, l/’:uTlfl(.or 5»t-l,iiw, 
Anthofof" The. Low of LotuVoi'd and Tenant'* 

J. BRADLEY DYNE, 

One of tlic Coiivc.ViUii ing Counsel to the Court. 

W. A. COPINGEB, LL.I)., 

Professor of Law' lii the Owens College; 
Author of Index to Precedents in 
Con ite. 

P. S. GREGORY, 

Oii« (if ilie Convey-nicliig Cii.uincl to the Court. 


rjnilE purpose of this Work is to supply, in a convenient and easily 
X. accessible arrangement, a complete collec.tion of all the Forms 
and Precedents which are necessary to the lawyer in the 
practice of his profession. ^ 

Unlike existing Collections of Forms, which are mostly the^vork 
of a single author, the Forms in this Work have been written by 
Specialists in their respective branches, but harmony and consistency 
are secured by their passing under the eye of the General Fid i tor. 

Iq short, this Work is a complete ^Lib rary 
of all Forms and Precedents — other 
Forms— toat a Lawyer c an possibly require . 




INTERNATIONAL 


LAW. 


VOti I. 



l.ONTiOS • I'niKTr.!* liv 

proTTIS’A'OOOK ASfl fo.. \i'.\V-Kl HF.PT SQrAUT? 
ASi* I*AKLI.\MH.Vr fcirifKhJ- 




irpoN 

INTERNATIONAL LAW. 


ItV 

SIR EOI3E11T PHTIJJMORE, D.C.L. 

MKMni-.W nr IIKH MAJESTY^ MDHT HOS4)URAIU.K VWIVY COUNCTL, AND 

,rin»(;K of thh inon covet of admiralty. 


Af\*a iroAiwi^ 

Afr«/»nAr? ftd^poVf ica'i o/id- 
7/inTruc V.ipavaf ra/noi 
WrSpiiri TrAovTOVt \puattxi 

llaivti eiffiovAuv 0c'/iiitos,’ Pi\J), Ofymy. xiii. 7. 

Jn.slicP is tlie common concern of mankind.’— UiritKK, vol, v. p. 275, Thovghfs on Ur Frnrh 
R-'Vn\nti(jiu 

‘ liwtfl a Tlris do<’,lia iiit.pr <UwMcrata TA^latum est» jn? Natnra? et CIcntinm, trsiditnni Kccimdum 
diwipliiiara Chri.aiaiionim.’— Ekiiinitt:, xxxii. Ih' Sotiovihm Jurr Pt Ju^tUhv, p. 120. 


VOL. J. . 

Cl^irti (Ctiition. 


LONDON; 

BUTTERWORTHS, 7 FLEET STREET, 

ITab liubltflbrTs to lb( djfncrn's ; 

n0.l>CrES. .FOSTER, & CO., GR^IFTON STREET, DUBLIN. , 

1879. 




PEEFACE 

TO 

THE THIRD EDITION. 


Tiiii vSegond Edition of this volume was published 
ill *1871. In the Preface to that edition J gave a 
summary of the principal historical events whicli liad 
aftcctc<l International Law during the period between 
the ])ublieation of the First and Second Editions. 

The notice of tliese events, as well as of tliose of a 
more subsc<iuent date, has been incorporated in tlie 
text of the present edition. 

Among tljcse events may especially be enume- 
rated ; — 

(1.) The Civil War in the United States, Avhich 
gave rise to questions as to the inviolability of an 
envoy on board a neutral ship on the high se.as ; as 
to the Law relating to blockade, contraband priva- 
teering, and generally the responsibility of a State 
for the acts of its citizens. 

(2.) The temporary opening of the River St. 
Lawrence. 

(8.) The permanent opening of the Danube.. 

(4.) The Sound dues, and the claims of Denmark 
with respect to them. 

(.5.) Tlie Protocol to the Treaty of Pjiris, ISr/tJ, as 



VI 


I’KEKACK 


to iii\’^oking the arbitration of Friendly States pre* 
viously to a Declaration of War. 

(G.) The abolition of Domestic Slavery in the 
United States (1802.) 

(7. ) The change eftected in the relations of Turkey 
to Europe. 

(8.) Negotiations relative to the Isthmus of Suez. 

I repeat here, however, some portions of the former 
Freface, wliuth relates to general principles of Inter- 
national Jurisprudence. j 

These events have not induced me to change tlie 
opinions which I have expressed as to the cardinal 
principles of International Daw. On the contrary, 
1 venture to think that they furnish a strong cono- 
boration of them. 

The “ violence, oppression, and sword-law,” which 
have prevailed in part of Europe, ouglit not to shake 
conviction in tlie truth of these princi[)les, while on 
the other hand they are confirmed by the considera- 
tion of events which, unconuected with the late war, 
have hap[)eiied during the interval mentioned. 

There always have been, and always will be, a class 
(»f persons who deride the notion of International 
Law, who delight in scoffing at the jurisprudence 
which supports it, and who hold in supreme contempt 
the jwsition that a moral principle lie.s at its root. 

I'he proposition that, in their mutual intercourse, 
States are bound to recognize the eternal obligations 
of justioe apart from considerations of immediate ex- 
pediency, they deem stupid and ridiculous peclaiitry. 
They point triumphantly to the instances in which 
the law has been broken (a), in which might has been 

{rt)t Sed uiimnim lustoritB non lantuni qmn juste, sed et qiite inique, 
iracunde, impoienter Ihcta sunt niemorant .” — Orofwsj Dr. J, /?. 1. 2. c. 
xviii. K r. 



TO THE THIRD EDITION. 


vn 


substituted for right, and ask if Providence is not 
always on the side of the strongest battalions. “ l^et 
“ our strength,” they say, “ be the law of justice, for 
“ that which is feeble is found to be nothing worth ”(6), 

But in truth these objections are as old as they arc 
shallow ; they leave untouched the fact that there is, 
after all, a law to which States, in peace and war, 
appeal for the justiheation of their acts ; that there 
are writers whose (rx[)Osition of that law has been 
sfj^mped as impartial and just by the great family of 
States, that they are only slighted by those upon 
■whose crimes they have by anticipation passed sen- 
tence ; that Municipal as well as International Law 
is often evaded and trampled down, but exists never- 
theless, and that States cannot, Avithont danger as 
Avcll as disgrace, depart in practice from doctrines 
which they have professed in theory to be the guide 
of their relations with the Commonwealth of Chris- 
tendom. 

The axiom, “ populus jura naturm gcntiumque 
“ violans sum quoque tranqnillitatis in posterum rc- 
“ scindit munimenta,” remains as true to-day as 
when it was Avritten by its great author two cen- 
turies ago. 

The precedents of ci-iiue no more disprove the ex- 
istence of International than of Civil Law (c). The 
necessity of justice to tlie existence ol society is not 
denied ; but it is not more obAuous tlian the necessity 
of justice to the intercourse of States, the society of 
societii^s. 

Rulhiere, speaking of the Russian and Austrian 


(//) ITtsf/om of Holonwnj c. ii. v. II. 

(c) See, iilso, coiicludiiij^ i*einai'kH of tbe Third Volume. 



vm 


PKEFACE 


intervention in the aflPairs of Poland, observes : “ 11 
“ n’y avait cependant pour cette invasion aucun pre- 
“ texte legitime. Les puissances de I’Enrope ayant 
“ toujours cxerce entre elles le droit du plus fort dans 
“ toute l’6tendue de sa barbaric, cberchent a couvrir 
“leurs injustices et leurs violences de quelqiie appa- 
“ rence speeieuse ; et a tous les commencemens de 
“ guerre, on voit eclorc dcs volumes de sopliismcs. 
“ Ceux qui furent alors imagines doivent d’autant 
“moiiis ctre passes sous silence qu’ils ont cu daiiS 
“ la suite les consequences les plus fatales ” (d). 

The whole question is ])laced upon its true basis 
by one of the greatest masters of jurisprudence, whose 
luminous treatise on the subject, though edited 
in London, is too little rea<I in this country. 
“ Ratio autom hujus partis, et juris est, quia hu- 
“ niaiium genus (piautumvis in varies populos, et 
“ regna divisiim, senq)er habet aliquain unitatem 
“ non solum specificain, sed ctiam quasi j)oliticam, 
“ et moralem, quam indicat naturalc ])ra5ccptinn 
“ mutui amoris et misericordiie <(Uod ad omnos ex- 
“ tenditur, etiani extraneos, et cujiiscumque ratiouis. 
“ (Juapropter licet unaqimxjuc civitas perfccta, res- 
publica, aut regiium, sit in sc commuiiitas pcrfecta, 
“ et suis membris constans, nihilominus qiuelibet 
“ illarum est ctiam membrum aliquo modo hujus 
“ universi, prout ad genus humanum spectat : nun- 
“ quam cnim ilJie communitates adeo sunt sibi sulH- 
“cientes sigillatim, quin indigeant aliquo inutuo 
“juvamine, et societate, ac coinmunicatione, intcr- 
“dum ad melius esse majoremque iitilitatem: in- 
“ terdum vero etiam ob moralem necessitatem, et 


id) liul/ncrff Hist, de Poiof/ney vol. i. \)\\ 147-8, 



TO THE TIIIBI) EDITION. ix 

“ indigentiam, ut ex ipso usu constat. Hac ergo 
“ ratione indigent aliquo jure, quo dirigantur et 
“ rect^ ordinentur in hoc gencre communicationis et 
“ societatis. Et quaravis magna ex parte hoc liat 
“ per rationem nuturalem : non tanien sufficienter, 
“ et immediate quoad omnia : ideoque aliqua specialia 
“jura potuerunt usu earumdem gentium introduci. 
“ Jsam sicut in una civitate, vel provincia consuetudo 
“ introducit jus, ita in universo hiimano genere po- 
‘^ tueruut jima gentium moribus introduci. Eo vel 
“ maxime, quod ea, quae ad hoc jus pertinent, et 
“ pauca sunt, et juri natiirali valde propinqua et quaj 
“ &ciHin)a.m habent ab illo deductionem adeoque 
“ utilem ct conscntancam ipsi naturte ut licet non sit 
“ evidens dcductio tanquam de se omnino necessaria 
“ ad honestatem inoruni, sit tamen valde conveniens 
“ naturse, et de so acceptibilis ab omnibus ” (r). 

The suijri!:cstiou contained in the last Protocol to 
the Treaty of I’aris, 18o0, that (.^iristiaii States 
should not go to war without jireviously attempting 
to adjust their dispute by arbitration, has remained 
a dead letter, except perhaps in the case of Luxem- 
burg. The nellmcrents in the French and Prussian 
war, and in the JIussian and Turkish war, would not 
listen to the suggestions of such an arbitration ; thougli 
Turkey, after the defeat of Plevna, made some propo- 
sition of the kind. 

The writer of these pages is anxious to acknow- 
ledije the service which ho has derived from the works 
of his own countrymen, and from those of tlic United 
States of North America and the Continent of Europe, 
in the compilation of these volumes. 'I’o the works 


{e) Suarez de Lcg,^ lib. ii. cap. xix. § 



X 


ntEFACE 


of Ward, of Manning, of Wheaton, and Story, he is 
under great obligations. To various writers on the 
European Continent, and especially to the learned 
ITeiffer, his acknowledgments are also due. lie also 
desires to draw attention to the Spanish works of 
Abreu and Pando, particularly of the latter; and to 
the following works, “ l.>ie Ccschichte und Literatur 
“ der Staatswissenschiifton,” by R. von Mold, Erlan- 
gen, 1855; an excellent essay by Mr. Ilurd, an 
American jurist, on “Topics of Jurisprudence con» 
“ nected with Conditions of Freedom and Bondage ; ” 
a sketch by M. van Hogendorp, a Dutch jurist, of the 
Dutch School of Jurisprudence founded by Grotius; 
some Pamphlets on Maritime International Law by 
Professor Wiirm of Hamburg ; “ Fiinf Briefe iiber 
“die Fluss-Schifffahrt ” u. s. w., Leipzig, 1858; new 
editions of Wheaton’s “ Elements of International 
“ Law,” by Mr. Lawrence and by Mr. Dana, with 
ample notes ; a new edition by Mr. Demangeat of the 
“Droit international prive” by M. Fa;lix; IMancini, 
“Della Eazioualita,” Torino, 1851; “The Law of 
“ Nations,” by Sir. T. Twiss, 186J; an “Historical Ac- 
“ count of the Neutrality of Great Britain during the 
“ Amcricaii Civil War,” by M. Bernard, Chichele 
Professor of International Law at Oxford, 1870, a 
work worthy of its very learned author ; “ Inaugural 
“ Lectui’c on Albcricus Gentilis,” by Professor Hol- 
land, 1874; “Discours prononce, par M. Franck, an 
“ college de France dans la seance d’ouverturo de son 
“*cours, De Droit de Nature et des Geyts,” “ Journal 
“ des Debats,” Mardi, December 24, 1872 ; “ Alberico 
Gentili,” Speranza, Roma, 1870; “The Papacy and 
“ International Law,” by Ernest Nys, Doetour en 
Droit, translation by Rev. P. A. Lyons, London, 



TO THE TiriUD EDITION. 


XI 


.1879; “First Platform of International Law,” hy 
Sir Edward Creasy, 187G ; “ Le .Droit International,” 
by Cal VO, 1870 ; “ The Law of l.)omicil,” by Dicey, 
1879; “Das Internationale Privat- nnd Strafrecht,” 
von Dr. L. Bar, 1862; “ Encyclopadic der Rechts- 
“ wissenschaft,” von Dr. Franz von IIoltzendorlF, Pro- 
fessor dor Hechte in Berlin, 1873; and to the “ Journal 
“ dll Droit International Privti et do la Jurisprudence 
“ comparde,” fonde ct public par M. Edouard Clunot. 




DRTHCATION OF FI/tST til) fT JON. 

TO 

CUARIJffl JOHN VISCOUNT CANNING 

IN AFFECTIONATE 

ACKNOWLEDGMENT OF WIS LONG FRIENDSHIP, 

AND IN SINCKUE VENERATION FOR THE ILLUSTRIOUS NAME 

WTTICII niC WORTHILY BEARS, 


THESE PACES ARE INSCRIBED 





Trip: FIRST p:DiTr()\. 


The NEHEssrrr of miRual iiitcrcoiirs^e is laid in the 
nature of States, as it is of Individuals, 1)7 God, who 
willed the State and created the Individual, 'fhe 
intercourse of Is’ations, therefore, gives rise to Inter- 
national nights and Duties, and these require an 
International Law for their regulation and their 
enforcoinent. 

That law is iiot enacted by the will of any common 
Superior upon earth, but it is enacted by the will of 
Gotlj and it is expressed in the consent, tacit or 
declare<l, of inde.pcn<lent Nations (o). 

The la\v which governs the external affairs equally 
with that tvhich governs the internal affairs of States, 
receives accession from custom and usage, binding the 
subjects of them as to things which, previous to the 
introduction of such custom and usage, might have 
been in their nature indifferent {h). * ^ 

Custom and usage, moreover, outwardly express 

. (rt) OroL rrulcg. sb. 10-25. “ Omni autem in re cvin&ensio omnium 
gontiiun lex natime putanda est : ” Cu\ Tn$v. i. 115. 

(6) “ Omne jus aut consensus fecit, aut necessitas constituit^ aiit fiv- 
niavit conaiieiiulo." — Dig. lib. i. tit. iii. 40. 



XVI 


PUEFACK 


the consent of nations to things wliich are naturally, 
that is by the law of God, binding upoiiithem. But 
it is to be remembered that in this latter case, usage 
is the effect and not the cause of the Law (c). 

International Jurisprudence has received since the 
civilization of mankind, and especially since the 
introduction of Christianity, continual culture and 
improvement; and it Inis slowly acquired, in great 
measure and on many subjects, the certainty and 
i)recision of positive law. 

There can be few nobler objects of contemplation 
and study than to trace the gradual progress of this 
jurisprudence — the steps by which it has arisen from 
a few simple rules of natural law transferred from 
individuals to vStates, to the goodly and elaborate 
fabric which it now presents. The history of this 
progress has been written by Ompteda, Miruss, and 
Wheaton (d) in a manner Avhich leaves the German, 
the English, and the French readers but little to de- 
sire. The subject receives some further notice in the 
body of this work, but the space within which this 
preface is necessarily confined, does not allow me to 
enter into details, which have received a ver}’’ able ex- 
position from the authors to whom I have referred ; 
and I must content myself with inviting the atten- 
tion of ray readers to the principal epochs of this 
interesting and instructive portion of the moral and 
intellectual history of mankind. 

1 pro|)ose to cast a very rapid glance over the 


(c) " Vi-rujit/imen liio etinm usus est eSbctiis jarim, non jcif, 

(/iiiii lioo jus non ex usu, sed usue ex jure mV'— Suarez, I)e Lrtje. u terra 
et naluruli, no Jure Gentium, 1. i. c. xix. 8, OV. tk Off, 1. 9, 5. 

(d) By this nuthov, both in Knglish and French. 




TO TTIli I'IRST KDITroX. 


XVII 


principal Jurists, Avhosc labours have contributed to 
raise the edifice of International Law, and to conclude 
this preface with some observations on a subject, not 
altogether, it may be hoped, devoid of interest to all 
students of jurisprudence and history, but certainly 
not unworthy the attention of Knglish readers — 
namely, the growth and cultivation of the science 
of International Law in this country. 


I5EF01IK THE (niUISTIAN JillA. 


Tt is liardly necessary to say that the jiecidiar dis- 
jicnsation uiwhu* whi(;h the flcwish nation was placed, 
and the rigidly prescribed mode of their dealings with 
foreign nations, remler \ jiin any attempt to trace in 
the history of that people the vestiges of International 
Jnrispnidence (e). 

ddie Kgyjitians held tlie persons of ambassadors 
sacred ujion strictly religious grounds, and it ajipears 
to have been not unreasonably' sn])posed that the 
Egyptian jjriests compiled a written /us'/ce/o’/e, which 
I’ytlnigoras transplanted into Greece. Neither the 
source nor the nature of International Law can he 
said to have been unknown to the Greeks. 

It was indeed a maxim of their wise.st statesmen {/) 
that no State eonld sid»sist without acknowledninu' 
tlie rights of its neighhour.s, and the remarkable hi' 
stitnfion of tlio Anqihicty'onie League ajiproached to 
tile realitv of an international tribunal, so far as the . 


(/ ) Michfivlh, Mosol:i(ltPA Itvcht, I’li. ii. hraclUisrhv.< Staatsm ht, 

the troiilruont ol' J)iivi(l’s juiibajssador by the King* of (lie Aiimion- 
itos.- 2 SanweJy r. w 

(f) IVacImimfh, Jna Ovufinm qvule Mnnii/ //jimf ff>vAV/,? (T3oroJ. 

ridf. post, pt. i. ch. ii. 

VOL. 1. 


H 



rUKKACK 


great republic of the dilForent States of Greece was 
concerned; but the stranger with whom there was no 
alliance was an enemy, and all Treaties of peace, like 
those formerly made between the Turks and Euro- 
peans, were for a limited period. 

The Co/h’f/ium and the Jus Feciale of tlio Romans 
are the most remarkable instances of regard for fn- 
tcrnational justice ever exhibited by any nation, and 
the wonder is increased by the reflection, that this 
Colleffiiim was tlie institution of a nascent State, which, 
in its very infancy, laid down the observance of right 
towards other nations, as a cardinal principle of its 
])ublic policy. — The institution of the rmipemlorr.'t 
also bears testimony to the same ])olitical integrity; 
how much, indeed, the practice of Rome in her ma- 
turity and decline was at variance with that principle 
of her early days, is well known. 

But making, as history compels us io do, this ad- 
mi.ssiori, it must be remembered that if the Jus inter 
dentes (//), strictly speaking, was violated by the 
practice of conquering Rome, yet the Jus (ientiuiu 
was in roalit} established by Iicr compilation of flu- 
risprudcnce ; for in this stood transci'ibed (denially, 
if the word were applicable to a mortal work, those 
maxims of written Beason, iho.se principles of Natural 
fj{iw, Avhich not only guide a State in its conduct 
towards Individual Eoreigncr.s, and arc the root of 
Comity, or Frirufe Fnternationul J^uir, but which 
^guide a<State in it.s conduct towards other States, and 


iff) 'Hr' o.’tj frostbit m of Luoan a.s to tlio violalion of the Laws of Kinbassy 
by the Ej/yptiiUisj is> very roiniirkai)lo ; I do not remcnil)er to have seen it 
noticed : — 

*LSod neqiie mumli valuit, ii(.*que ftedcra .sancta 
UentUms .’ — PharmL x. 471-2. 



TO THE FIKST EDITION. 


XIX 


Avilich conatitiite the most considerable foundation of 
Public International Justice. 


THE CHRISTIAN .ERA BEFORE GROTIITS. 

We enter next upon the Clirl-stian jcra. Great and 
inestimable has been the effect of tlic doctrines of 
Revelation upon the J urisprudence of Nations, though 
long retarded by the evil passion.s both of mankind 
generally and of tlie governors of men ; yet tlie 
lamguage, and the teacliing, tlie system of a irpresm- 
Uiiion of different nations, the very forms of the 
assembling of the Councils of the Clinrfh, the notion 
of a common International Tribunal, the authority of 
the Pojie during ages steeped in intellectual ignorance 
and moral grossness, contributed to preserve some 
idea of the Duties and Rights of Nations. 

During the earlier part of the Middle Ages the 
Pope discharged tlie functions of International Judge 
and Arbitrator in the conventions of Christendom, 
'file practice might have been imperfect, but the 
theory was sublime. Tlie Right of the Pope to dis - 
charge these noble fiinctioiLs was almost unques- 
tioned before the time of Roniface VTII., a.d. Dj02. 
A great change was effected by the introduction and 
prevalence of the doctrine, that a distinction was to 
be taken between temporal Hubjirthn ratione Jhnli, 
and subjection in temporal matters rotlonc peccafi [It). 
In Ecclesiastical Law the distinction was of little 
avail, and easily evaded, for in the Middle Ages the* 
acts of an absolute irresponsible prince were e.asily 
brought Avithiu the category of sin {ratione pcccati). 


(//) Ih Mnrcdj Ih* Co7U'ord, Snce7'(i, vt hnpin\ iv. t*. xvi. 5. 

A 2 



XX 


rRKFACi: 


But in Interiuitioiml Law, the distinction was of the 
utmost importunee, for it was now competent to 
Princes to tell tlicir subjo<.‘.ts, that there were cir- 
cumstances under vvliicli the Papal Interdict was 
iiufawful, and therefore invalid. The Pope lost his 
character of International Judge, and retained but 
for a soa.son, and witii difficulty, the character of 
International Arbitrator. Tliat, too, had disappeared 
before the epoch of the Pefonnation, though up to 
that [)eriod all the Ibrcign or international ailairs of a 
State were considered and treated as matters apper- 
taining solely to the prina,', and with which the people 
had no concern. 

It miist be remembered that, tiven in the ^ear 
1 493, Ferdinand and Isabella were conlirmed in their 
possessions and discoveries in the New A\"orld l)y the 
Pull of the Pope, issued, as former Bulls had been, 
in virtue of his general territorial .supremacy over 
the whole world ; and that as late as the year 1701 
the Pope complainetl, in his Consistory, that Austria 
had recognized the llnlo]’ of Pru.ssia under Jiis ncu' 
title of '' not con-sidering that it was the ex- 

“ elusive \)rivih‘go of the Holy Sec to make kings’’ (i). 

'fhe Crusades introduced the }irineiplc of Interven- 
tion, botli ujion tJiO general ground of religd(Ui.s .sj’in- 
pathy, ami uj>on tlie particular gj-ound of reverema* 
for those holy ]>la(‘es whicii had been the scenes of 
our Lord’s life and death — ])rinci|>les which, after the 
laj).se ofiive centuries, are, while I write these l>agcs, 
again most ])owcrfulIy afliv-ting the de.stin.ies of 
Kurojx*. I hmigh the Greek l']mj)ire, for many eon- 


li) Litnikrly, Meiiiinn», t. i, cilod (riuilhvr, ii. J45, 



TO THK FIRST KDT'llOX, 


XXI 


furies before its destruction, occupied no position 
which uftects the history of International rhtrispru- 
dence, yet the conquest of (^nistantinoplc by the 
Turks operated very injuriously npon th(^ com- 
nmne of Christendom ; because thercliy an important 
portion of Christendom lias been, up to a very recent 
period, exempted from its influence. Events, how- 
ever, which are now liapjiening, tlie great internal 
changes in the habits and laws of that extraordinary 
people, and tlicir increasing connection with the 
tlliristian States, are evidently preparing tlie way for 
a general diflusion of International justice among 
nations of diflFerent reliirious creeds. Dvirirnv the 
Middle Age.s, the most remarkable features of liitcr- 
iiational f Jurisprudence are the maritime codes of 
commercial tOAViis, the institution of the Consulate, 
the laws and customs of Embassies, 

.lilt A OF (JKOTIUS. 

It is strange that the admirable and luminous 
treatise of Stum'Z (/ ), IJe Ij'ijihm et Deo Leijislatore, 
is not referred to by (JriitkiH in his great work, be- 
cause it appears IWmi his other writings thiit lie was 
acipiainted (as indeed he coidd not but liave been) 
with the works of this profound jurist. aSw/tcc cer- 
tainly cannot be claimed as a fruit of the Reforma- 
tion, but at tliat c\)Ocb, from whatever cause, a new 
leni of l.uteriiatioiial J nrisjirudence opens flpon us* 
Streaks of lidit I’roiu various counfries, our own in- 
eluded, preceded tlie dawn of International Jiirisjiru- 
dcnce wliieh appeared in the Mare Lihenwi of Grotais^ 


(/.) llorii in-18, (lied lfil7. 



XXll 


rilKFAUIO 


published in IGOi) ; but its full meridian shone forth 
in his great work, De Jure Belli et Fads, which was 
published in 1624. 

It is scarcely too much to say, that no uninspired 
work has more largely contributed to the welfare of 
the Commonwealth of' States. It is a monument 
which can only perish with the civilized intercourse 
of nations, of which it has laid down the master prin- 
ciples with a mastei‘’s hand. Grotius first awakene<l 
the conscience of Governments to the Christian sense 
of International duty (1). 

His work has been blamed for a want of systematic 
arrangement, and because the examples which illus- 
trate the principles of law are taken chiefly from 
classical times and classical literature ; but these de- 
fects were, in truth, necessarily incident to tlie parti- 
cular period at which he wrote. His work was de- 
fended from these chai’ges by himself during his 
lifetime (in), and since his death lias received a vindi- 
cation from the pen of Sir James Mackintosli, which 
will not easily be surpassed («). 

1 Avould fain linger on the merits of this famous 
mastei’-buildcr of International Jurisprudence, this 
great legislator of the community of States, but I am 
admonished by diminishing space to j>rocccd. 


(/) CVinstiauiit placii'Uj'’ Clinstianis in tiniversinn lUacuit,'' 
fecit recerentia Chnsiiunce lef/isf See, — Vide pu8f , p. 40. 

^ {m) lnt>iie of bis bitest letters to his brother. Oiotius says of some one 

who bad attacked his work: “Now prohat quod, in illis lihris De Jure 
Belli ac Pacis, iitor Paf^auorum dicli.«i: veruiu non ita ut utor, ut ilia 
sequi satis C’a.se Ohiistianis arbitror, setl ut eriibuscciit Christiani si minus 
prsestoJit.”— i/. Grot, Epktol€e^ Ep. 640, p. 020 (ed. Amstulod, 1687) ; 
and see Vrolvy, to Ih Jure B, et P, 

(«) Lecture on (he Lmv of Nature and Natiom, 



TO TUU FIRST KDITION. 


XXIU 


FKOM THE 1‘EACK OF WESTJ’ilALLV, 1«18, TO THK 
TREATY OF UTRECHT, 

International Jurisprudence received considerable 
cultivation, a natural result froTu tlic increased inter- 
course between Kuropcaii nations, both in Europe 
and in their colonies. 

JPuffendorf] in 1(572, published his once admired, 
tfnd still celebrated work, Jure Naturce d Gentium : 
it had the merit of stating boldly that Natural haw 
was binding upon nations as well as upon iiulividuals. 

It would indeed be hardly tiiir to say that Grotius 
had altogether omitted Natural Law from the sources 
of International J urisprudeucc ; but certainly Pulfeu- 
dorf is entitled to the merit of having supplied, by 
greater [irecision of statement, a philoso\>hical defect 
upon this subject in the work of his predecessor. In 
other Inspects, however, the disjjaragiiig opinion of 
Leibnitz upon the work of I'litfendorl'lias been gene- 
rally contirmed ; it is, in truth, very inferior to the 
treatise of Grotius. 

Leibnitz, Avhose Codex Juris Gentium Dipionmticus 
was published in 1(593, manifested in his preface, .‘ind 
in other jiassages scattered about his works, a pro- 
found and just acquaintance Avith the principles of 
the science Avhich we are considering, and left pos- 
terity for ever to regret that the fuller prosecution 
of it Avas SAvallowcd np in the variety and vastness of 
his other studies. 



XXIV 


PllEFACK 


THE INTERVAL BETWEEN THE TREATY OF 
UTRECHT, 1713, AND OF I'ARIS, 1703. 

In 1740-43, llV//‘ a disciple of Lcibiiits!, published 
the fruit of his enormous hibonrs in nine quarto 
volumes, J?/.y Naturw Meihodi Stientijlce Pertrac^ 
tahnn, &c. An abridgment of his work, dealing 
soj)arately with th(^ question of Jus G^mtiutu, snl^- 
sequently appeare<L 1 le ]>rided himself on accurately 
distinguishing the Natural from the Voluntary, Con- 
suetudinary, and Conventional I.aw of Nations. His 
work had two gr(}at dehicts — the application of 
technical and mathematical terms to moral subjects, 
and the assumption of the false liypothesis that there 
existed de facto a great republic of wliich all nations 
were members. The latter error, however, doc.s not 
in reality atlect the force of his general ]>osition, find 
exists, perhaps, more in the pedantry of the language 
than in the spirit of the argument wJiich he derives 
from it. The Avork of Wolff, with all its merits — 
aiul it had many — wouhl prf)bably have been both 
unread and iinkiiowu to modern readers, but for Jus 
abridge!’ Wittd, who, departing in some jioints from 
his original, lias melted down liis ponderous (pmrto.s 
into the concise, readable, jiractical, sensible, but 
superficifd work, AA'hich still retains its poj»ularity. I 
rnu.st, however rcluetfintly, pass by Monlesquim. 

Jlynkershot h ranks next to his illiKsfrious fellow- 
countryman Crotius, whom he delighted to call o 
fji^syus, and for wlioin, though not unfrequently dis- 
senting from his opinions, he entertained the reverence 
Avhich one gresit jurist naturally feels for another. 



TO THE ElKST EDITION’. 


XXV 


The QucBStiones Juris Puhlici appeared in 1737 ; — 
this, work, a.nd the two treatises by the same author, 
Di! Doinimo Mari/^ and Pe Foro Lefjatorum, arc 
among the most valuable authorities which this 
science can claim. 

* 

THE INTERVAL BETWEEN THE TKEATY OF PARIS, 
17(i3, AND THE FRENCH REVOLUTION, 1789. 

Italy furnishes us with T^impredi and OaUiani ; 
(lA’many with Moser and Martens. The latter has 
obtuiued, not undeservedly, a i)lacc among the classics 
of International Law. But tliis interval is chiefly 
memorable in its effect upon this science, for the 
event of the independence of the North American 
Uepublies, Jiccompanied by the distinct recognition 
of the authority and principle of Christian Inter- 
national Law in another quarter of tlie globe, and by 
a cultivation of that law which has already produced 
no less eminent profe.ssors of it tlian a Shay, a Kent, 
and a Wheaton. 

FROM THE FRENCH REVOLUTION, 1789, TO THE 
PRESE.NT TIME. 

Germany has furnished many writers uj)on Inter- 
national Law. 'I'wo appear to mo worthy of especial 
notice — Kluber^ whose work, in spite of leaning to 
the dotdrines of the Holy Alliance, is of great value ; 
and Ifejfter, who is still enjoying the refutation 
which he has ac([nired. 

England, to pass by for the moment the achieve- 
ments of her distinct International profession, has 
made no mean contributions to the cultivation of 
International fJnrisprndcnce, in the W'ritings of 



XXVI 


I'KEFACK 


Bentham, Ward, Mackintosh, Mr. Manning, Mr. 
JReddie, Mr. Wildman, and Mr. Bowyer. 

Private International Iauc {jus genfmm)hfis greatly 
flourished, thanks to the transfusion of liertius, Hu- 
berus, Rodenburghius, A'oet, and other liUtin authors, 
into the well-arranged and carefully-reasoned works 
of Story, Wtichter, Savigny, and Foelix ; of the first 
and the last of these authors we have but lately 
deplored the death. 

It will be seen that J have been compelled to o/nit 
the mention of many authors, whom 1 have con, suited, 
whose names will be found below in the catalogue of 
authorities, and to whom I owe a debt of much 
gratitude. 


HISTORY OF INTERNATIONAL JURISPRUDENCE IN 

ENGLAND. 

It remains only to invite attention to a subject 
which, however little known, is not without inten^st 
to the historian, the jurist, and the statesman, namely, 
the existence in Kngland of a distinct Bar for the 
cultivation of International J urisjirudencc (o). 

It cannot be denied that the Conunou Law of 
England has hitherto been, to a certain extent, like 
the territory in which it prevails, of an insulated and 
peculiar character. It must be acknowdedged that it 
has borrowed less than any other State in Christendom 
from the jurisprudence of ancient and modern Rome. 
The fountains of wisdom, experience, and written 
reason, at which the European continent in former 

(«) 'the following sketch, •with slight altnrntiona, lias appeared in a 
letter from tho author to Mr. Gladstone, puhlished in 1848. 



TO THE FIRST EDITIOX. 


XXVIl 


and America in later times have so largely drunk, 
were passed by in England with a hasty and scanty 
draught. The Gothic conquerors of continental 
Europe fell by degrees and from a variety of causes 
under the dominion of the laws of the vanquished. 

“ Oapta ferum victorcm ccpit ” was eminently true 
of the restoration of the Civil I.aw during tlie middle 
ages in every country, but our own; and yet, for 
more than three centuries, England had been go- 
verned by the Civil Law. Jt is a very remarkable 
facl, that, from the reign of Claudius to that of 
Honorius (a period of about 360 years), her judg- 
ment-seats had been filled by some of the most 
eminent of those lawyers (/>) whose opinions were 
afterwards incorporated into the Justinian compila- 
tions. lint all germs of such jurisprudence would 
have ])erished with every other trace of civility 
under the rude incursions of Saxons and Danes, had 
not the tribunals of the clergy all'ordeJ them shelter 
from the storm (q). Occasionally, too, some maxims 
of the Ivoman Law, admitted cither from their in- 
trinsic merit, or through the influence of the clergy, 
enriched the then meagre system of English law. 
The Norman invasion wtis attended with a memorable 
chauffc in the constitution as it then existed. The 
Bishop and the Sheriff had heretofore sat together in 
the Court of Justice, administering with equal juris- 
diction the law upon temporal and spiritual offences ; 
by the charter of William the Conqueror, th^ Eccle-. 


{p) Vapiman, Paidm, and Vlpian, Vide Duch, Be Um ac Autor. 
Jurig Jtonuad, 1. ii. c. 8, pars secuuda, s, 7. 

(q) Blnchtme, vol. 4. 410 ; Preface bp l)r. Burn, to hie JEcdesiantual 
'Law; Millar’s Ilistorxctil View of the Emjlish Govmimeiit, vol. iii. ; 
Burke's Fragment of the History of England, 



I»REFACK 


xxviii 

siastical was separated from the Civil Court. This 
division has continued (with the exception of a tem- 
porary reunion in the reign of Henry I.) till the 
present period; the Ecclesiastical tribunal deciding, 
according to the rules and practice of the Civil and 
Canon Law, generally, on all matters relating to the 
Church, to the spiritual discipline of the laity, ami, 
among other questions of a mixed nature, upon two 
of the most i/nportant kind, namely, the contract of 
marriage and the disposition of personal property 
after death (r). It is not neeessary to dwell on the 
original reasons for assigning these mixed subjects to 
the jurisdiction of the Spiritual ( 'Ourts. It u'as an 
arrangement at the time almost universally prevalent 
in Christendom, 

The Ecclesiastical Courts, howevei*, were not the 
only tribunals in which the Koman law was .‘idininis- 
tered. In the High Court of Admiralty (a) (esta- 
blished about the time of Edward I.) and in the Courts 
of the Lord High (Unstable and the Earl Marshal 
(the Courts of Honour and Chivahy), the mode of 
proceeding was regulated by the same code. 

The Cotirts of E(juity also borrowed largely, and 
for a long time almost exclusivelv, from the same 
jurisprudence. Almost every I.ord High Chancellor 
from Ileckett to Wols(;y — that is, from the Conquest 
to the Jleformation — was an ecclesiastic; and it w^as 
a matter of course, that, like every eminent ecclesiastic 
, of thos6 days, he should be well skilled in the Civil 


(r) Butirs Prrfare, xvii. LyndinKHTs pp. 06-7, 2(51, .‘i 10 

(('(I, l(#70, (Lvford). 

(») Biavl'sfone, V4>1. iii. p. Millars Eyiglish flomunmi/, v'fiJ. xL 
p. 338 , 



To TIIK FlIlST KIMTIOX. 


XXIX 


and Canon Lau'. Indeed, It was chiefly because they 
were deeply versed in this jurisprudence, tliough 
partly, no doubt, because their general attainments 
were far superior to those of the lay jiobility, that 
the dignitaries of the Church were usually (/) em- 
ployed in the foreign negotiations of this period (m). 
Nor can it be denied by the most zealous admirer of 
our municipal huv that, during the period which 
elapsed from the reign of Stephen to Kdward 1., the 
Judges of Westminster ITall had frequent recourse to 
the Justinian Code ; for in truth the writings of Fleta 
c<^ntain many literal transcripts of passages taken from 
the Digest and the Institutes (a*). 

Lastly, in the Courts of the two Universities the 
same system prevailed. Universities, which are not 
the least remarkable institutions of Christendom, 
had iudeed originally been founded for the express 
purpose of teacliing this science, and even in this 
country, Avherc the feudal law so largely |>rcvailed, 
had succeeded in kindling into a flame the precious 
spijrk which the schools of the cloisters and the 


(/) JlnnTfi DialotjiKS^ Monti and PoUficaU vol, ji, p. l)nvl\ Do 
Urtii, vSv., Juri» Civil ift, p. .‘iH l. 

(fi) By tlie Staliitos «>!’ York C^atliedral oxpvoss pvovitiiou is nmtlf> for 
thtj !il)3tmco t)!’ thii Doaji whoii employed 1 k*\(uuI seas in the service of the 
Stnte. 'riie Bishop of Bristol, who was also Lord Biivv wils oiio of 
llio nc^rot ill tors of the 'J’realy (»f Utrechtj the last iiistanco, I believe, of 
Ihij iiijid. 

(./■) Millarf \\ ; rrefttev to IlalifaP Civil Law; MackittlMa Law 

of Xatarc and Aar ions, p. 5i2; lAml Holt, 12 Mod, Jlep. p. 482: “ fiias- 
mneh as tlio laws of nil nations are doubtless raised out the ruins of 
tbe Civil Law, as all C iovernnients are sprung- out of the ruins of the 
lloinan Kinjiire, it must be tiwned lliat the principles of our law are 
borrowed out of the Civil Jjiiw, llierefort: ixrouuded upon the same reason 
ill many 



XXX 


PRteFACE 


learning of the clergy had preserved from total 
extinction (y). 

I pass now to the epoch of the Eeformation. On 
the Continent, where the Civil Law was the basis of 
all municipal codes, the study of this science was 
scarcely, if at all, affected by this memorable event. 
In England it was otherwise. The professors of the 
Civil and the Canon LaAV belonged chiefly to the 
Ecclesiastical Courts, and were associated in the 
minds of tlie people partly with the exactions of 
Kmpson and Dudley in the preceding reign, and 
j)artly with the authority of the Pope. Severe bhnvs 
were dealt at the former, which were aimed solely at 
the latter system. 

“ The books of Civil and (.‘anon Law were set 
“ aside to be devoured with worin.s as savouring too 
“much of Popeiy,” says the learned Aylifte in his 
history of the University of Oxford during the Visi-> 
tat ion of 15*17 («). And Wood (h), after stating 
“ That as for other parts of learning at Oxford, a 
“ fair progress was made in them,” observes, “ The 
“ Civil and C'anon Laws were almost extinct, and 
“ few or none there were that took degrees in them, 
“ occasioned merely by the decay of the Church and 
“ power of the llishop.«.” 


(?/) Hee LywlivooiT H Life^ liiotj, Jiril, Derlwnf.ion; View of 

Oivil and EtwleMaMical Law, p. 118; Zovches Preface to Im Trealiae on 
the Punvihne.nt of AmbassadorSf to llonry, Marquis of Dorchester: et. 
vide infra, 

{z) Kmpson and DiidJey justified their extortions by citations from tiie 
Civil Law. 8ee llifrffs Dialoynes^ Moral and Political^ vol, ii. p. 211, 
though they contain a very auperficial and very imperfect sketch of the 
ibriimes of the. Civil Law in Imgland. 

{a) Ayliffea Oxford, vol. i. p. 188. 

{b) IVotnfs Hist, and Antiquities of the Uiiiversity of Oxford, vol. ii. 
b. i. s. LK.\i.x. (ed. Gulch). 



TO THE FIUST EDITIOX. 


XXXI 


In 15H6, Thomas Cromwell, Chancellor of the 
University of Cambridge, Secretary of State, and 
Vice-gerent of the Iving in Spirituals, was appointed 
(by the King’s seal used for causes ecclesiastical) 
Visitor of that University ; by the same instrument, 
lie promulgated, in the name of the King, certain 
injunctions, of which the fifth was — 

‘‘ That as the whole realm, as well clergy as laity, 
“ had renounced the Pope’s right and acknowledged 
“ the King to be the supreme head of the Church, no 
“ one should thereafter publicly read the Canon 
“ Law, nor should any degree in that Law be con- 
“ ferred ” (c). 

About the same time, or rather earlier, similar in^ 
junctions were issued to the University of Oxford: 
these are preserved in the State Paper Office, and the 
corresponding injunction to the one just mentioned is 
as follows : — 

“ Quare voluinus ut deinceps nulla lectio legatur 
“ ]>alam nt publico per Academiam vostram totam in 
“ jure Canonico sive Pontificio, nec aliquis cujus con- 
“ ditionis homo gradum aliquem in studio illiiis juris 
“ Pontilicii suscipiat, ant in eodem in ^msterum pro- 
“ nioveatur quovis inodo.” Those injunctions (for 
th(u*e never was, as is commonly believed, any 
statui;ablc provision on the subject) underwent some 
modification from the regulations of Edward \ 1. In 
lOrH'), Henry VJIL apiwiuted certain Visitors, the 
chief of whom were Richard Layton and John Lon- 
don, LL.D., to visit the University of Oxford ; these 


(t.) Stn/pp’g EtMagtind Menivriah, vol. i. c. x.vix. .\pp. No. Ivi*., 
Iviii. ; Cwtpcr's Annals of the Untversitj/ and Town of Cambridffc, p. oio. 



xxxn 


PREFACE 


Visitors joined a Civil to the Canon Law Lecture in 
every Hall and Inn. 

In 1549, a Visitation of the University of Cam- 
bridge took place under the auspices of the Protector 
Somerset. Bishop Ridley was ap])ointe(l to be one 
of the Visitors, and one of tlie professed objects of 
this A'isitation, according to Bisliop Burnet (<f), was 
to “ convert some feliowsliips appointed for encourag- 
“ ing the study in Divinity to tlie study of the Civil 
“ l.aw; in particular, Clare Hall was to be suppressed.” 
Bishop Ridley found his task very difficult and odious, 
and wrote to the Protector that, to diminish the 
number of divines went against his conscience. 
Somerset re|)lied : “ We should be loth anything 
‘^should be done by the King’s Alajcsty’s Visitors 
“otherwise than right and conscience might allow 
“and approve; and visitation is to direct things for 
“ the better, not the worse ; to ease consciences, not 
“ to clog them ; ” and further, “ my Lord of Oanter- 
“ bury liatii declared unto us, that this niaketh partly 
“ a conscience unto you that divines should be di- 
“ ininished ; that can be no cau.se; for first, the same 
“ was met before in the late King’s time to unite the 
“ two Colleges together, as we are sure ye lu'u e heard, 
“ and Sir Edward North can tell, and fur tliat cause 
“ all such as were students of the Law, out of the 
“ newly-created Cathedral (’hnrch, were dis'appointcd 
“ of their livings, only reserved to have been in that 
“ Oin/ •College. Tiie King’s Hall being in a manner 
“ all Lawyers, ('anonist.s were turned and joined to 
“ Michael House, and made a College of Divines, 
“ wherewith the number of Divines was much aug- 


(f/) //urncH, vol. ii. pt. ii. p, "J’JJ. 



TO THE FIRST EUITIOH. XXXUl 

“ mcnted, Civilians diminished. Now at this present 
“ also, if ill all other Colleges where Lawyers be by 
“ the Statutes or the King’s injunctions, ye do con- 
“ vert them or the more part of them to Divines, ye 
“ shall rather have more Divines upon this change 
“ tlian ye had before. The King’s College should 
“ have six Lawyers ; Jesus College some ; the Queen’s 
“ College and others, two apiece ; and, as we are in- 
“ formed by the late King’s injunctions, every College 

in Cambridge one at the least All these together 
“ do make a greater in number than the Fellows of 
“ Clare Hall be, and they now made Divines, and 
“ the statutes in that reformed Divinity shall not be 
“ diminished in number, but increased, as appeareth, 
“ although these two Colleges be so united. And we 
“ are sure ye are not ignorant hov) necessary a study that 
“ study of Civil Law is to all Treaties with Foreign 
“ Princes and Strangers, and how few there he at this 
‘‘'present to the King's Majesty's service therehif eye. 

Queen Elizabeth, among the Statutes which slie 
})roinulgated for the University of Cambridge, and 
Avhich have been recently published by Dr. Lamb, 
enacted one, l)e Teniporilms J^ectionum et Libris prte- 
Icgendis (c. iv.), in Avhich it is ordered, “ Theologicus 
“ jirmlector tautum sacras literas doceat et profiteatur. 
“ Jurisconsidtm Pandectas, Codieem, vel Ecclcsiastica 
“ vegni Jura quae nos edituri sumus et non alia piUA- 
“ leget.” Since the reigns of Btephen and Henry 11., 
Avhen Vacarius first read lectures at Oxford on the 
Civil Law, the Universities have made it their legiti- 
mate boast that tiie study of the Vloman T.aw found 
its shelter and encouragement within their pormena. 
The history of almost every college Avill shoAV that 

VOL. I. b 



XXXIV 


rUEFACE 


the promotion of this study was an object which its 
founder had at heart. The statutes promulgated 
after the Jlcformation, during the royal visitations of 
the Tudors, as has already been shown, most care- 
fully provided for the furtherance of the same end. 
The statutes of Edward YI. deihie more closely the 
knowledge requisite for a Doctor of Civil Law, and 
set forth the usefulness of such knowledge to the 
Church and State, us follows : “ Doctor Legum — 
“ Doctor mox a doctoratu dabit operam legibus 
“ ^Vuglite, lit noil sit irnperitus earnm legum qiias 
“habet sna patria, et differentiam ext&ri palrilque 
juris noscat, et in solcmnibus comitialibns qiues- 
“ tionibiis unus qui id maxinio certissiinequc sciat 
“ facerc ad fiiiem qiiaistionum quid in illis jus dvKe, 
“ quid ecrksiasticuin^ quid regni Anglim jus teneat, 
“detineat, dctermmctquc ” (c). 

In truth, the Universities were doubly interested 
in the preservation of this study : first, because the 
statutes, both those of the University and of the 
College, must, in cases of doubt, which not unfre- 
quently arise, receive their inteiqirctation from the 
Canon and Civil Law; the founders of Colleges 
(Chicheley and Wykeham for example) were often 
deeply versed in both branches of jurisprudence, and 
in cases tried before the Visitors of Colleges, many of 
the arguments have been drawn from these sources ; 
but, secondly, inasmuch ns the degrees conferred at 


(r) Tliese dUtiites are copi(Ml from Dr. LamVa book, but they arc, 
matatis mutnmliAj tluj mm as those, given to OxfvU’d, save that Oxford 
has some po8t*»taf.ut(f, which (Jarnbridge has not.— Collect, vol. iv. 
p. 144, in Turr. SchnL Oxmu ; LamV^ DoemmUnfrom MS. Library, C. C. 
C. C., p. ]27 ; see also a similar statute of lilizalieth s, 32y. 



TO TUB FIRST EDITION. 


XXXV 


the Universities were tlie necessary passport to tlie 
College of Advocates at Doctors’ Commons. 

Of the five profensorships {/) which Henry VIII. 
founded on the spoils of the Church, one Avas insti- 
tuted and endowed at each University for teaching 
the Civil Law. At Oxford, the lay prebend of Ship- 
ton was attached to the Professorship, and in Charles 
II.’s reign this endowment was expressly recognized 
and confirmed as an exce])tiou to tlie general law laid 
down in the Statute of Uniformity. The foundation 
of these Professorships in some measure counter- 
balanced the injury which the Civil Law received from 
the discredit into Avhich the Canon LaAv had fallen (</). 
But this was not, I think, the sole or the princi])al 
circumstance which kej)t alive at this time the know- 
ledge of this jurisprudence. 

About this period a great and important change had 
begun to take place in the relations of the European 
communities towards each other, which rendered the 
preservation of the study of the civil hnv of great, 
and indeed, indispensable, necessity to these islands. 
During the reign of the Tudors, the English had been 
comjielled, by a multitude of concurring causes (flir 
too many for enumeration in these pages), to abandon 
their hopes of permanent conquests in Prance; never- 
theless, at this very period, Groat Britain began to 
assume that attitude mth respect to foreign Powers 
which) from the days of Lord Burleigh to Mr- Can- 


if) Divinity, Ilt'tre'w, Greek, Civil Ltiw, MtHiicine, fonnded 1540, 
eenfimu'd 1 .o-lC. John Story appears to liavo been the tirsl Pri^fessor at 
Oxford appointed with a fixed .salary. — ll'ootl, Jli^. ^ Ant. of Oxford, 
vol. ii. pt. ii, pp. 840, 869 (ed. Gutch). 

(ff) Luther openly burnt at Wittenberg (he books of the Oauon 
Law. — Jtcbertson'8 Chartrs V. b. ii. 



XXXTl 


PREFACE 


iiing, it lia*s been the constant endeavour of her wisest 
and greatest statesmen to enable her to maintain. 
She became an integral part, in spite of her “ salt- 
“ water girdle” (h), of the European system, and 
daily more and more connected her interest with that 
of the commonwealth of Christendom, livery fresh 
war and revolution on the Continent, every political 
and religious movement, rendered that interest 
indissoluble. 

The closer the bond of international intei’conrse 
l:)ecame, the more urgent became the necessity for 
some Ijiternational Law, to whose decisions all 
members of the commonwealth of Christendom might 
submit. The rapid advance of civilization, bringing 
witli it an increased appreciation of the blessings of 
peace, and a desire to mitigate even the necessary 
iniserics of war, contributed to make this necessity 
more sensibly felt. A race of men sprang up, in this 
and in other countries, whose nobhi profession it 
became to apply the laws of natural justice to nations, 
and to enforce the sanction of individual morality 
upon communities. But the application of these laAv.s 
and sanctions to independent States, and still more 
any ap[)roach towards securing olKjdieucc to them, 
v/as no easy achievement. No one nation, it was 
obvious, had any right to expect another to submit 
to the private regulations of her municipal code ; and 
yet, according to the just and luminous observation 
* of Sir James Mackintosh, “ In proj)ortiou as they 
“ approached to the condition of provinces of the 
“same empire, it became almost as essential that 
“ Europe should have a precise and comprehensive 


(A) Cymhelm^y act iii. :!C. L 



TO THE FlnST KHITION. 


XXXVU 


“ code of the law of nations, as that each country 
“ should have a system of municijial law ” (^). 

It was, as has been said, soon after the era of the 
Reformation that the science of International Law 
began to flourish on the Continent ; and it has been 
said that this epoch was on the whole unfriendly to its 
study in this island. It remains to show by what 
means, any vestiges of it Iiave been preserved ; and 
how a profession, whose duty it was to bo “ lawyers 
“beyond seas" (/t), has been maintained in these 
islands, where honour and emolument have ever, with 
few exceptions, attended the knowledge and practice 
of a distinct and isolated system of municipal law. 

Long before the Reformation there existed an 
ancient society of lb*ofes.sor.s ant] Advocates, not a 
corporate body, but voluntarily associated for the 
practice of the Civil and Canon Law. In 1587 , Dr. 
Henry Hervey, Master of Trinity Hall in the Uni- 
versity of Cambridge, purchased from the Dean and 
Chaj)ter of St. Paul’s, for the purpose of ])roviding a 
fixed place of habitation for this society, an old tene- 
ment, called Mountjoy House, on the site of which 
the College of Advocates at Doctors’ Commons now 
stands. In this .sequestered place the study and 
practice of laws proscribed from AVestminster Hall 
took root and flouri.'^lied. 

The Tudors, who, with all their faults, were un- 
questionably the most acconipli.slied and lettered race 
which as yet has occupied the English tliroin?, always^ 
looked with a favourable eye upon civilians, employed 
them in high oflices of state, and set especial value on 


(t) Lecture on the Law of Nature anil Nations, ]>. 13. 
(A) Ayliffes Pareri/m Juris Canonicif Introduction. 



xxxvm 


PKEFACE 


their services in all negotiations with foreign coun- 
tries. Few, if any, matters of embassy or treaty 
were concluded without the advice and sanction of 
some person versed in the Civil Law. The enmity of 
Henry VIll. to the Canon, as has been observed, 
materially injured the profession of the Civil Law ; 
but this was a result neither contemplated nor de- 
sired by tliat monarch. lie founded, as has been 
said, a Frofessor.sliip of Civil Law at both Universi- 
ties, and in many respects befriended the maintenance 
and culture of this science. In 1587, Albericus 
Gentilis (?), an illustrious foreigner, was appointed to 


(/) Alltorico Geutili \va« Imihi at irfjinjfineyiu in ynar iiml 

gmdnatccl m J)octnr of Civil Law in the IJjiivei’ftity of IVnii^ia. Oblifj^ed 
to lly Inmi his native country on account his s^yuiimlhios with the 
Rrforination, he anivetl in 1580 in Enfrland, and after acquiring a great 
reputation at Oxford, was appointed in 1587 to the ItegiiLs Erofessorship 
of Civil Law in that University, In the year folhiwiiig lie began the 
puhlication of the most important of his numerous works, the Ih Jure 
Bf/fL In 1005 Ijtj was appointed Advocate for the King of Spain in the 
English Court of Admiralty. In J*X)8 he died in Lorulon, and was buried 
in tln> churchyard of St. llolens Church, Ihshopsgate. 

Considerable inlerc'St in his life and writings has recently been taken 
both in Italy and in England. A memorial tablet, erected in St. Helenas 
f?hurch, near the .sprd ’where he and his father were buried, was unveiled 
by 11. R. II. Prince Leopold on the 7th of July, 1877. The epitaph on 
the tablet is as follows; — 

1), 0. M. S. 

Alberico (Jenlilt Teto Ckra atque Pnestimli FamiVia in Pro vine: 
Anconitan: Sato, Anno vEtat xxi Doctune Oiuani«;nta Perusii Adt?pto, 
Pauhkqne }u)st in Xobilissirna Ital. Civitate Asculo Judici, Aliisqiic 
Iloijorilnis Magna Laude l^n’flliJeto, J^xstrenio ifogfas A(*n(l: (l.vonien.sis 
pcrxxi Auuns Leginn IVoiessori, PJtirimis Fditis Ingeiiii 31oiuiinentis, 
Oelelxu’riq^io Opfinieque do Itep; ilerilo, Regire Catholicai Itispaiu 
Sfajestalis Subditoruni ( ‘onstituto (ob Exiiniam Virtutem ct Doctrinam) 
Advooato in Anglia Perpf‘tuo, Hoc in Ltico Diia cum Dplimo et t-laria- 
bimo Patvt^ 1). Mathino (ieiitili Oaniioho Ducatus Arehiatro, Filiolaque 
Dulcissima, in ChrivSto Je«u Requiescenti II. M. S. Esthera Gentilis de 
PeigniMar: Opt: Chariss: et Ilonoratiss: 

Obiit Londoni Anno MDCVIII. D. xix Junii yEtatis LVIIL 

Epitaph ium hoc olim coiis(;riptuni, sed niinquani adhuc n Lucem 



TO THE FIRST EDITION. 


XXXIX 


the Professorship of Civil Law at Oxfori] ; his work, 
J)e Jvkn BeUi, was in truth the forerunner of Grotius, 
According to the emphatic language of the learned 
Pulbeck, he it was “ who by his great industrie hath 
“ quickened the dead body of the civil law written by 
“ ancient civilians, and hath in his learned labours 
“ expressed the judgment of a great State, with the 
“ soundnesse of a deep phylosopher, and the skill of a 
“ cunning civilian. Learning in him hath showed 
“ all her force, and lie is therefore admirable liecause 
“ he is absolute” (w). 

During the earlier period of the Tudor sway eccle- 
siastics, many of tliom of high renown, were advocates 
of the civil Jaiv, but towards tlie close of Elizabeth’s 
reign the profession became, and has ever since been, 
composed entirely of lay members (n). During 
this reign a nice question of International Laiv was 
raised in the case of the Bishop of Boss, ambassador 
to Mary Queen of Scots, and Elizabeth submitted to 
Drurye, Lewes, Dale, Aubrey, and Johnes, advocates 
in Doctors’ Commons, that most difficult and im- 
|)ortant question as to the propriety and lawfulness of 
punishing an ambassador for exciting rebellion in the 
kingdom to which he w'as sent. Civilians were also 


Kdituni et Edad Vetiistato jX‘iio Akditum, Vivi 1^5^* VidniiD 

Tmiiuhiti in QuiJnm ex .Aiiiatozibii? Jurii^pnuhnitho et Libc- 

ra?icijii AiliuHi Poiii Cimivonint Anjio SaJiitis M IKWLXW IL 
A new editioD of llio /?/• Jure Belli- piiWislu’d at l-lio Oxford 
UnivcrRity rn*s»s, uiidei* t\io siipi*Tvkioii of Dr, llolliuid, tUo Chiclielo « 
Profesisor of lut oniational I ^aw. 

(w*) A JHredwu or Breparatirp- to the Sf-utlp of Ihn Lmv, f. 260 (Load. 
1620, 8 VO.). Irdrod. to the Civil Lmr^ 0?. 

(w) Ad uusucccssftil attempt was made in Iliirlimores Basts 

Bo-portSf 21 ; 1 ) to obtain a mandaiiniH from tlio arddasliop commanding’ 
the Dean of the Arches to admit. Dr. Iliglnuoro a member of the College 
of Advocates. This was in 1807 , 



xl 


PREFACE 


consulted as to the power jof trying (o) tlie unhappy 
Mary herself; and Mr. Ilallara seizes on the facts, 
with his usual sagacity, to demonstrate that the 
science of International Law was even at this period 
cultivated by a distinct class of lawyers in this 
kingdom. James I., who, besides his classical attain- 
ments, imbibed a strong regard for the Civil Law 
from his native country, protceted its advocates to the 
utmost that his feeble aid would extend (/?). To 
this monarch Sir Tliomas Ridley dedicated his View 
of the Civil and Ecdesiofitical Law, a work of very 
considerable merit and of great learning ; it had for 
its object to demonstrate the pettiness and unreason- 
ableness of the jealousy with which the common 
lawyers had then begun to regard the civilians, and 
the law which they administered at Doctors' Com- 
mons — ^and it appears to have been by no means 
unattended with success ; for it was perhaps a con- 
sequence of this able work that, about the year 1604, 
each of the two Cniversities Avas empowered by royal 
Charters to choose two members to represent them in 
Parliament, and by the same Charters they were 
admonished to select such as were skilful in the 
“ Imperial LaAvs.” 

The reign of the First Charles produced tAvo civi- 
lians of great eminence, whose reputation, especially 


(o) VondifMimnl History^ vol. i. pp. 218, 219 ; Stryf}e, 300-362. 

^ {p) Co'frell, who was Professor of Civil Iaw at Cambridge, had ac- 

quired a profoujul knowledge of this law, and liad in consequence been 
elioaen Miuster of Trinity Hall (an ollice at this moment filled by the 
learned Judge of the Arches), published a dictionary of law, in mutation 
of Ciihin's Liixieun Jarklicum^ a w'ork of much learning, but containing 
extravagant dicta about the king's prerogative. James shielded him from 
the wrath of Coke. 



TO THE FIU8T EDITION. xli 

that of the latter, was as great on the Continent as in 
these islands — Arthur Duck and llichard Zouche. 
The former steadily adhered to the fortunes of his 
unhappy sovereign ; and his work, De Usu ac Autlio- 
ritate Jurh Civilis, has never ceased to maintain its 
deserved authority. Zouche, who held several high 
appointments, submitted to the authority of the Par- 
liament (r). ■ In 1653, the famous case of the Por- 
tuguese ambassador happened : Don Pantaloon de Sa, 
having deliberately murdered an English subject in 
London, took refuge in the house of his brother, the 
Portuguese ambassador. That high functionary in- 
sisted on the exemption of his brother from punish- 
ment on account of the inviolalile character which the 
law of nations impressed upon the dwelling of an am- 
bassador. Cromwell , however, caused him to be tried 
before a commission composed of Sir il. Blunt, 
Zouche, Clerk, and Turner, Advocates of Civil Law, 
and others ; before whom he was convicted of murder 
and riot, and for these otfences was executed at 
Tyburn. On this occasion Zouche Avrote a very able 
and learned treatise, entitled, A Dissertation concern^ 
ing the Punishment of Antbassadors who transgress the 
Laivs of the Countries where they reside, &c. This 
civilian Avas also the author of several other treatises 
on public law, the most celebrated of Avhich Avas en- 
titled Juris inter Gentes Queestiones, a book which is 
to this day of high authority and constant reference 
by all jurists both in Europe and America. 

During the reign of Charles ti. various causes con- 


(r) Zouche had received a patent from tfanies, assigiiinjf to him 
a stipend of 4()/, per annum, and all emoluments and privileges enjoyed 
“ All)ericu8 Qeiitilis, Frauiuds Janies, and John Budden.’^ A copy of 
this patent is to be found in Ityniers Fivdera, 



xlii 


PREFACE 


spired to extend and strengthen the influence of thcf* 
Civilians. The restoration of the orders and disci- 
pline of the Church — the rapid growth of commerce 
and its consequences, auginentation of personal pro- 
perty and increase of shipping — the creation of a 
navy board (^^), and widely spreading relations with 
foreign States — the two Dutch w^ars, and the personal 
merits of the great Civilian of the day, Sir Leoline 
Jenkins — all contributed to ])roduce this result. 

“ If,” says Sir llobert Wiseman, Advocato-Crcneral, 
writing in 1G80, “ we look no farther back than 
“ twenty years ago, we sliall remember the Civil 
‘‘ r^aw did so far spread itself up and down this 
“ nation, that there was not any one county which 
“ had not some part of the government thereof 
“ managed and exercised by one or more of that pro- 
“ fession, besides the great employment and practice 
“ it had in the Courts in London. So that it being 
“ thus incorporated, and, as 1 may say, naturalized 
“ by ourselves into this Commonwealth, it ought not 
“ to he reputed or looked upon by us a strarmer any 
“ longer ” (#). 

I come now to the last period, that wdiich elapsed 
between the Re^'ollltion of 1G80 and the present time. 
During this interval the profession of the Civil Law 
has been sustained by a succession of advocates and 
judges, who may challenge comparison with their 
brethren of Westminster Hall, and who have done 
good ^rvice to the State, both in her domestic tri- 
bunals, in her courts of the law of nations, and in her 
pacific intercourse with foreign nations. Nobody 

(ji) Vi(h rv)nfi Mmnoirn^ paBhim. 

(/) rhe extract is taken firom a treatise calletl The Latv of or the 
ExevUenry of the Civil Law. 



TO TUB FlUST EDITION. 


xliii 


acquainted with the history of our country since the 
Kevolution can be wliolly ignorant of Sir Leoline 
Jenkins, Sir George Lee, Sir G. Hay (m), Sir William 
Wynne, Dr. Lawrence, and I.ord Stowell. 

The biography of Sir Leoline Jenkins contsiins a 
history of the foreign adairs of this kingdom from 
the breaking out of the first Dutch war (16G4) to 
the Peace of Nimeguen (167G-7), which he nego- 
tiated in concert with his illustriou.s colleague, Sir 
W. Temple. He tilled various liigh offices, those of 
Member of Parliament, Judge of the High Court of 
Admiralty, Judge of the Prerogative Court of Can- 
tcrbuiy, l*rincipal of Jesus College, Oxford, Ambas- 
sador, Secrctai’y of State. 

'throughout the works (n) of this great jurist are 
scattered tracts upon various questions of Public and 
International Ijaw, rich in deep learning and sound 
reasoning, and consequently fonning a mine from 
which all subsequent jurists have extracted materials 
of great value. His acqu.aintance with the Civil Law 
was deep and accurate, as he had opportunities of 
evincing upon several occasions ; and he often la- 
mented, we learn from his biographer, that the Civil 
Law “ was so little favoured in England, where all 
“ other sciences met with a suitable cncourage- 
“ ment (.r). 

“ His learned decisions,” I quote from the same 

source (i/), “ rendered his name famous in most parts 

__ • 

(w) Vide Walpidds lihtory of Lad Ten Venrs of Oeorye IL^ vol. ii., 
for an aocouui of Dr, Hay’s eloquence, 

(lO I believe the Collc<res of Jesus and All Souls contain MSS. yet 
iinpublished of Sir L. Jenkins, which, it is to be hoped, will one day see 
the light. 

(.r) Life of Sir L, Jenkim, p. xi. preface. 

(y) Jb» p. xiii, and vol. ii. p. 7*41. JIo advised the Duke of York as to 



xliv PKEFACE 

“ of Europe (there being at this time almost a general 
“ war, and some of all nations frequently suitors to 
“ this Court), and his answers or reports of all 
“ matters referred to him, Avhother from the Lords 
“ Commissioners of Prizes, Privy Council, or other 
“ great officers of the kingdom, Avere so solid and 
“ judicious as to give universal satisfaction, and often 
“ gained the applause of those Avho dissented from 
“ him, because they showed not only the soundness of 
“ his judgment in the particular matters of his profes- 
“ sion, but a great compass of hiowledge in the general 
“ affairs of Europe and in the ancient as well as 
“ modern practice of other nations. U])on any (pies- 
“ tions or disputes arising beyond sea betAA'cen His 
“ Majesty’s subjects and those of other Princes, they 
“ often had recourse to Dr. Jenkins. Even those 
“ Avho presided in the seats of foreign Judicatures in 
“ some cases applied to him to kuoAv Iioav the like 
“ points had been ruled in the Admiralty here, and 
“ his sentences were often exemplified and obtained as 
“ precedents there, &c.” “ Eor his oi)inion, Avhether 

“ in the Civil, Canon, or Laivs of Nations, generally 
“ passed as an nncontrov'ertible authority, being 
“ ahvays thoroughly considered and iudiciouslv 
“ founded” (^). 


his title to the Sfiffueurj' of Aubi<'iic, on the death of the Duke of Rich- 
riiond^ vol. ii, p. 704. Ik advised upDii tho claim of the Crown of Englaiul 
to the dominion of the narrow sefw and the liomage due to her flag; upon 
the Kl(?ctoral l^rince l*alfttine*s .settlement : on the ell'ect of a settlement 
of proiierty riiado hy Manrice Prince of Orange ; ns to the snccesaion to 
the personal estate of the Queen Mother of France, and on many other 
eases of great importance and delicacy, in which th(^ knowledge of a 
civilian and publicist was required. Koe vol. ii. pj.. (kjy, 07a, 07i, 70!), 
&C. ; seo also Tcmjiteta Memotm. 

(*) P. xviii. 



TO THE EIRST EDITION. 


xlv 


The Law wliich governs tlie disposition of the 
personal estates of intestates, coininonly called the 
Stsitute of Distriliutions («), was framed by Sir L. 
Jenkins, principally upon tlie model of the 118th 
Novel of tTustinian. 

It was also by the influence of this distinguished 
member of their body that, after the Fire of Lon- 
don, the Advocates of Civil Law obtained a share of 
certain immunities enjoyed by other branches of the 
Bar. The Rescript of Charles 11. on the subject 
begins, “ Charles li. The Society of the Doctors at 
“ Civil Law, Judges and Advocates of our Court 
“ now settled at Doctors’ Commons, in Loudon, hav- 
“ ing to their great charges rebuilt the same, &c. »&;c. 

‘‘ And we knowing the mefulneas of that fWofesHion, for 
the service of m and onr kingdom in many affairs, 
“ found just cause to assert their exemption from 
‘‘ p.aymont of taxes, burdens, and impositions in the 
“ same manner as the Societies of the Serjeants’ Inn 
“ arc and have used to be.” 

The death of fJenkius happened soon after the 
accession of James IL After the abdication of 
that Monarch the Civilians were consulteil upon 
very nice question of International Law, to 
which reference is made at length in this work {b). 
In the reign of Anne, Sir John Cooke, a dis- 
tinguished Civilian, and Dean of the Arches, was 
one of the Commissioners for the Treaty of the 
Onion with Scotland ; and everybody acquainted 
with the 'rreaty of Utrecht is aw’arc that the Civilians 
were continually consulted by the Crown upon the 
Iniming of tlie different Articles contained in it. 

(«) 22 & 2a Car. II. c. 10. 

(J) Vide post, pp. oo9, 507. 



xlvi 


PREFACE 


Thus, the Queen, in her instructions to Lord Boling- 
broke, “ whom we have appointed to go to France,” 
speaking of the exchange or alienation of Siedy by 
the House of Savoy, observes, “As for the second 
“ point which you are to adjust, as far forth as is 
“ possible, we have directed what has been prepared 
“ by the Civilians upon tliis subject to be put into 
“your hand” (o). The reigns of the first two 
Georges produced Sir George Paul, Sir Henry Pen- 
rice, and the two Bettes worths. Judges of great learn- 
ing and ability ; but I pass on to the date of 1 729, 
when Sir George Lee first entered upon his career of 
distinction. This able Civilian was an active enemy 
of Sir llobert Walpole ; he was also Treasurer to 
Frederick Prince of Wales, and deservedly venerated 
for the learning, accuracy, and clearness of his deci- 
sions in the Prerogative and Arches Courts, in both 
of which tribunals he presided as Judge. But he 
enjoys also no inconsiderable European fame ; for he 
was the principal composer of a State Paper {d) on a 
great question of Inteniational Law — the Answer to 
the Memorial of the King of Prussia, presented to the 
Duke of Newcastle by Mr. Mitchell, and, to borrow 
the words of his biographer (e), “ it has universally 
“ been received and acknowledged throughout Europe 
“ as a coirect and masterly exposition of the nature 
“ and extent of the juri.sdiction exercised over tlie 
“ sliips^ and cargoes of Neutral Powers by Courts of 
“ the Law of Nations, established within the Terri- 


(c) BoUii^hrohiin Corresivmdenvcj vol. i. p. 4, note, 

(rf) It Ls print in tlip, CvUvrlauea JuHdiviu 

(fi) See Dr , Phdhmorda Pt^eface to Sir fir. Lees p. xvi. See 

also an elahorato panegyric by Dr, JIarri», in the Preface to his transla- 
tion of the ImtUutfis o f Justin ion. 



TO THE FIRST BDITIOJf. 


XlVll 


“ tories of belligerent States. Montescpueu charac- 
“ terizGS it as repome sans repUque, and Vattel terms 
“ it un excellent morceau du droit des (fens." To tliat 
memorial indeed another name was affixed, the name 
of one who was not indeed a member of the College of 
Advocates, but who Avas destined to be among the few 
luminaries of Jurisprudence in our island, and able to 
vie with those which have shone upon the Continent 
— of one wliose boast it was that he had early and 
late studied the Civil Law, and Avho built upon this 
avowed basis, and on his knowledge of the Avriters on 
Public Law, that goodly fabric of Commercial Juris- 
prudence Avhicli has since indeed received addition 
and (Arnament, but Avhich oAA’^ed its existence to a 
mind saturated Aviththe principles of the Uoman LaAV. 
This great man Avas then Mr. Murray, afterAvards l^ord 
Mansfield. For comprehensive grasp of mind, for 
knowledge of general prijiciplcs of laAV, and of their 
particular application in various countries, this illus- 
trious magistrate Avas second only to one, AAuth the 
mention of whom I shall presently close my brief 
notice of distinguished Civilians (/). 

Put, to be historically correct, 1 should first adA'crt 
to a circumstance of great importance in its relation 
to the history of the AdA'oeates of (.Vivil Law. Sir 
G. Lee died in 1750; in 1708 George. 111. granted to 
this Society a formal chaidcr, by Avhich it became a 
legally recognized body corj)oratc. The charter re- 
cites, that the members of the College at Doctors’ 
Commons had devoted themselves to the study of the 
Civil and Canon Law, and were cither advocates or 


(/) Want of apace compels me reluctantly to omit all mention of such 
judges as Sir E. Simpson and Sir G. Hay. 



xlviii 


PREFACK 


judges in the Ecclesiastical and Admiralty Courts, 
and that they had for “ centuries past formed a 
“ vohmtarg society,” &c., and prayed the King to be 
pleased, by letters patent under the great seal, “ to 
“ incorporate them and their successors by the name, 
“ style, and title of the College of Doctors of Law, 
“ exercent in our Ecclesiastical and Adiniralty Courts.” 
The charter goes on to say : “ We having taken 

the said petition into our royal consideration, and 
“ being willing to give all fitting encouragement to 
“ the said study,” &c., and then proceeds to constitute, 
with every imaginable formality of expression, the 
(Jollegc a legal cor])oratc society, with vivsitors and 
power of making bye-laws, &c. 

I return to the mention of that Civilian whose 
reputation as a jurist overtopped even the great name 
of Lord Mansfield. In 1770 Dr. Scott enrolled his 
name among the advocates of Doctors’ Commons ; 
lie is now better known by his well-deserved title, 
Lord Stowell, of whom it may be indeed empliaticully 
said that he left 

^^Clanmi et venoraLile nomeii 

And the remainder of the line is scarcely less his 
due — 

“ Kt raiiUum nostra quod pmfuit urbi." 

Ihe hist(uy of Ijord Stowell is familiar to the pre- 
sent generation, llis great natural endowments — 
his long residence at the University — the admirable 
use he made of the opportunities which such residence 
affords for storing the mind with all kinds of know- 
ledge — his vast and varied intelleetual attainments 
— the mature age at which they were brought into 
the fray of active life — ^the keen insight into human 



TO TIIH PIltST KDITION, 


xHx 

nature — tUe judicial c.haractcr of his wise, patient, 
and deliberative mind — the marvellous power of lucid 
arrangement, educing order and harmony from the 
most perplexed and discordant matter — the clear and 
beautiful robe of felicitous language and inimitable 
style which clothed all these high attributes — the 
awfid crisis and couvidsion of the civilized world 
which called fin* the exercise of these powers in the 
judgment-scat of International Law at the very time 
when he Avas elevated to it — the renown of his decisions 
over both hemispliercs (y) — the great age to which he 
enjoj ed the full ])ossessioii of his faculties — all this is 
matter of too recent history to rctpiire a more detailed 
emnneration. “ Testes vero jam omnes ora) atquc 
“oirmcs exterm gentes ac nationes: denhjno maria 
“onniia tum universa, turn in singulis oris, omnes 
“ siuns atqnc i»ortus ” (/<). With this justly venerated 
name I close my catalogue of English Civilians, omit- 
ting, not without regret, all mtmtion of J’)r. Strahan, 
the translator of Domut ; of Dr. Hands, a (hvilian 
of great eminence, the translator of The I u-stltutes ; 
of that learn(;d and al)le tindge. Sir William Wynne ; 
and of Dr. Lawrence, the well-known friend of 
Ihirke. To the latter, indeed, ample justice has been 
done by Lord Ilrougham in liis (^karactevft of British 
Staiesrnen (/’). 

1. have endeavoured to give a skotcli of the fortunes 
of Jnternational l^aw in this country, and to illustrate 
them bv some comments on the mo.st distinguished 
disciples of that jurisprudence. My sketch has been 

(//) Vide passim fhe Amvriraji h^rports. 

(/i ) Cit'ero, 2)ro Lvfjo. ]\taniUa, 

(/) See alsso J lor Iters Memoirs, vol. i. 


VOL. 1, 



1 


ritlil’AOE 


necessarily meagre and imperlect ; it would otherwise 
have transgressed the limits of iny Preface; ajid I 
have been compelled, especiall}' <lunng the latter 
period, to pass by in silence many l^nglish Civilians 
who would have deserved coiniucmoration in a larger 
work. 


CONOJ.IJSION. 

In conclusion, the Author trusts tlud, in any judg- 
ment which may be ])assed u])on this work, it will 
be recollected that it is mi endeavour, upon a larger 
scale than has hitherto been attempted in England, 
to reduce, in some measure at least, to a system, the 
principles and precedents of International Jaiw ; and 
that this is a task which the very nature of the ma- 
terials renders extremely hard : inasmuch as it is veiy 
difficult so to arrange them as to avoid on the one 
hand a vague unsatisfactory generality, and on the 
other an appearance of precise mathemutic/d accuracy, 
of whicJi the subject is not susceptible. 

The Author is anxious to ex[)ress a sincere hope 
that others of his fellow countrymen, profiting by 
wliat may be useful, avoiding Avliat may be erroneous, 
sup)>iying what may be defective in his labours, may 
by them be stimulated to undertake and execute a 
better treatise upon the .same subject. 

It is by sucli gradual additions and painful accu- 
mulatibns that the edifice of this noble science may 
one day lie completed, and the Code of International 
Jurisprudence ac/^uire in all its branches the certainty 
and precision of Municipal Law. Such a result would 
be greatly iiistrumeutal in procuring the general 
recognition and ultimate sujireinucy of Ivigbt in thci 



TO TJIE EIKST EDITION, 


11 


intercourse of nations, and, Avith the blessing of God, 
in hastening the arrival of that ])nriod Avhcn the as- 
j.iiration ol tfie l^hilosopher and the vision of the 
IVophet shall be accomplished. “ Nec crit alia lex 
Roma) alia Athenis j alia nunc, alia posthac, sed ct 
‘‘ omnes gentes et ornni tempore una lex et seTnj)iterna 
“ ct immutabilis contiriebit.” ( Cicero, Dc Re Piiblica, 
1. 3, c. 22.) “ Nation shall not lift up sword against 

“ nation, neither shall they learn War any more.” 
(Isaioh, c. ii. v. 4.) 




CONTENTS. 


Ilail £. 


( JTTAPTER I. 

INTKOUUCTION. FOUN DA TJOXS OF InTEKNA I' lONAi. JlJUlSVinJDKSCE. 

Pp. 1-1). 

1. The Laws wliich govern Tntornulional Relations. 

2. The *Sulijcct.s of those Laws. 

:j. The Objects of those Laws. 

1. Certain Subjects requiring a particular consiileratiou. 

0 . Legal Mcians of enforcing [ntcrnational Public Higlits. 

(5. .lus Privatum inter (rentes, or Comity. 

CTi.vPTr?:ii IT. 

Plax of TllII WoKK. Pp. 10-L‘b 

OIIAPTEK III. 

SOUBCES OF IXTEKNATIONAL LaAV. Pp. M-2S). 

1. Natural Law. 

2. Uevcnled Law. 

3. Custom. 

4. Treaty, 

6. I>ivine and Nattirol Law. How applied to Christian and Ilelltlieii States,^ 
KfFoct of Christianity upon International Law. 


CITAPTEU IV. 

Keason op tue I'liiNO. Pp. ilO -ii7. 

Application of Natural and Kt!V<?aled Law to States, l^se of the Eonian Law. 



liv 


0O\TENTS, 


OIIAPTEll V. 

Consent op Natiotts, Pp. 3S-44, 

TIow mauifoRted. Uy positive ConA'oiition. l?y Custom. 


CITAITEll VI. 

lIlSTOKY'. Pp. 4o-Gl. 

Repositories of lutornational L.W. History. Treaties. Proclamations. 
Marino Ordiiiancos. Dwisions of Prize ('ourl.s. 


CriAlTKll VII. 

Writers ox Ixtekxatioxai, Law. Pp. 02-67. 

Their Authority and Use. 

OHAFl’EU VIII. 

llKCAPITirUrrON OP SoTRCES OP InTBRNATIONAI. JjAW. Pp. 68-75. 
Instances of the Application of the L,was dcrivwl from its various Soui’cos, 


CriAPTEU IX. 

Objection that there ls ho Laav 7ibcau.su .no Superior. Pp. 76-78. 

ffot icnaWe. Confusion of Ideas. All Moral Obligations equally Perfect, 
although Means of cornpidling Performance may bo imiierfect. Inter- 
national Ijiw recognized as a mtitter of Pact. Rocogriition of it incorjio- 
rated into Mnnicip,al Law of many States. 


9art M. 

CIUITEB I. 

Subjects op Interhationat. IjAw. States. Pp. 79-93. 
What is a State. Barbnry States. The Ottoman Porte. 



roxrKNT.s. 


Iv 


ciiAvrKU n. 

IFKKUENT KiNI >3 OV SrATKS. Pp. 04-112, 
rrincipal lJivii*ion. 

1. Ono fir morfi Stat-fss liiuJer ono Sfivf-niign. 

*2. Scveriil Slates inider a. Kcdcral Uuion. 

I. States nnflf.T ono Soveroia^n. 
a. Single States. 

/3. iSlalPs Hill ted nnli Hnio'nr., 

7 . Case of Pohinfl. 

5. States nnii ed 'person a li mih>ue, 
f. JVotoeted St!ite.s relainiiig International Personality. 
I^rotretoii States having lost Internal ionai i'orsonality. 
Ionian Isles. 

I'nropean ]'>e(^ Towns and Republics. 

I. Tin? case of iK-lgium. 

K. The ease of (Injoee. 

A. I'Gudal States. Turkish Provinces. 

CH.SPTKR IIa. 

EfiYPT. Pp. 143-105. 

1. History of. 

2. Rolat lulls of with Knrojiean Power.s. 

Suez Canal. 


Cir.VPTKU 111 . 

Staiks T;:^nTiK a Fkiikual Uniox. Pp. 150 157. 

1. (iormanic Confederation. 

2. Swiss Confederation. 

?i. North American Uni!e»i Rcpublies. 

I. South American ITnitefI Republics. 

(MIAPTER IV. 

(dKUMAN OoxVKDKTJATrOX AND E.UPTKE. Pp, 158 187. 

1. The Original lustitiirioii of. 

2. The Rcmoclelliug of in 1806. 

Tho Change oflected by tlio Tre.atios of Vienna, 1815, 1820. 

1. .Hestruetioii of ibis ConfediMVition by Pnissia, 1866. 

5. Constitution of German Empire, 1871. 

Swiss Confederation, 

CflAPTEIi V. 

United States of North A.m:kkioa. Centual and Soirni American 

llErVHUCH. Pp. 188- 200. 

History and Chnractf?r fif- 



Ivi 


rr»NTENTS. 


(MIATTMU VI. 

EXTIN<nH)N OF A SlATK P. ^01, 

A may lost? irs Intt rnatioiml IVisonnliiy. fFow, 


UllAPTEK VJl. 

ifGEft TN A State. Pp. 202 21 2. 

Docirinc of HoSu Jui'isls—of Savigiiy; Hooker; Gr^lins; MaUy; 
D’Aguessc'iii] ; Monlesqiiii.u ; Heiiieedus; Valle! ; By okorsliook ; Kf?Til ; 
Wheaton; IhiftenJorf;— all Hfipport tbo .Puctri/ie tlial Changes in a Slate 
do not. a/f»‘ct pn?vion.sly-exiHtin£!f International Oblii^ji lions. If iJio Terri- 
tory of a. Statfl bo (liridod. Ixiohl.'" and Duties are apportionod. Opinion 
of .Kent and Story, Ca^^e of lleljrluni. 


|)ait ire. 


(HIAPTEll 1. 

On.ii;c]’s OF Lmkkxationae Law. Pp. 210-215. 

]. !tights.s'^iVt'//,//ov.v. 2, U'rages of Comity. Iniiiorlance of (.hserving Dls- 
linot ions lolwcen. 


(;nAPTi:ii ir. 

liKiTiTs OF Indefej^oexcu aam) Kqualitv. Pp. 210 217. 

f. Kighls of Indei»iwn!on{.M‘. 

1. free Ciioiee, Stir., of (Tovoniinenl;. 2. Territorial jiiviolability. 3. Sdf- 
Pres«n*Yiition. 4. Commerce. 5. Ptight. of Aeqnihitioii. G. .luria- 
•'lietiim over iersoiis and Things ivifhin^ and, by way of Exception, 
v'Uhont her J'(!^ritol■ 3 ^ (jhri.vt ian Strangera In Mahometan Territ»}rie.s. 
Extradition of Criminals. 

IT. Limitation of foregoing Ri‘,dit.s. 

Doctrine of Intervention. 

HI. Kights of K(|nalif.y. 

1, Kight of protecting Subjects abroad. 2. liight to Recognition. 
13. Right to oxtevnal Marks of Honour. L Kight. to tnakc Treaties. 



rONTICNT.S. 


cuAm*:!! in. 

llrcJiir TO A Free Chofoe op Government. P. iUS-SilO. 

CHAPTER IV. 

TEHErroFUAi. iKvroLAiiiLTTy. Nationai. PoaftEssTONs. Pp. 220 222. 

1. Kivors !ind Hikes, 2. Qpon Soa. •i. Nairnv I. iJritisli ^^eas. 

5, Straits. G. Portions (‘f tho Sea.^f 


OHAPTl'Ii V. 

PuORERTi’ OK A STATE. RiVERS. Pp. 223 ?r)0. 

GoiHTal Law res poet inc^. iSl.ipiilalions in the dVeaty of Vienna as to frt(* 
Niivi^rM.fioii of Great Rivers. The. SehcKlt. Tlie V'islnla. The Donri). 
The iMiiubo, Tlie Uliino and 'rribularies. 'Hio Mississippi. The »Sl. 
I^awroiice. The Open Sea. Nootbi Soimd. The Jjalt.ii*. Sound Dues. 
Kif^ht.*^ of Fishiiijij. 


CII.VPTER VI. 

Narrow Seajj, as DrsTrNfurrsHED kkoai the Ooean. Pp. 257--2t)2. 

ih'il i.sji Clianncl. Mure Uherihu of Grotiiis. Mare efauiintn of Seldr-n. Holland, 
William III. Sir J^. Jenkins. Jiynkershook, Lop »1 SLowull. 


CHAPTER VH. 

Narrow Seas. Straits. Pp. 2()3-2r3. 

Hritish Channel. Great and Jiittle Belt. Straits of Mussina. Dardanelles. 
Kelluspont. Treaty of Berlin, Fiaherios. 


CHAPTER VIH. 

Portions ok the Ska. Pp. 274 - 303 . 

Rule of Territory within Marine League or Cannon-shot. Hovering or Rovenm; 
liJiwH. Case of Regina v.lveyn. Territorial Waters Junsdlclum Art ( 187 S). 
Laiidlofked Scan. The Jllack iSoa. Bosphorus. DuiiianulluH.* 


CHAPTER IX. 

Pecultar Cask ok the Isthmls ok Central America. 

Pp. 304-311. 

Briti.sh Treaty 'with United .Statu.s of Nort.h America, (ine.stion respecting 
Brit.isJi Settleinenis in Honduras. Honduras Interocoauic Railway, 



lONTKNTS. 


OUAFrKIt X. 

SEMiVPriKdTURVATlON. Pp. -;iLM . 

aMoans of Soonrity. Natioiwil Snfirt}’. Lawitil to pn^voTil. as well as repel 
Attack, liules aiul Illaslralions. When Conduct u? individual Subjects 
implicates the State. Doctrine of patie?ifia and nccpfun, 

CHAPTER Xr. 

RjraiT TO A FIIEJJ DliVT:LOr^lE.VT OV NaTTONAF. RKSOrRCES KY 
COMMEKCIi. pp. H22-:^23. 

Former Claims of Spnin and Portiij^al. Colonial Monopoly. 


CHAPTER XIT. 

Rkiht oe AcumsiTJON. Pp. ;»: 24 -.‘ 152 . 

Doctrine of— 1. 2. Vomniumi acqui.^^ 1. Orifrinal. '2. De- 

rivative. Different Kind.s of Onginal AcquisHhn : L Occiipatiiui ; 2. Ac- 
cession; 3. Prescript i»»n. Occupation, Klcinonts of, in Discoveiy, Use. 
Sottlemont. I II astral ions. Extent of Occupation. Tim Middle Distiiicc. 
L'lw of Contiguity. Fluvial Accessions, C.Mscof The Anna. Boundaries. 
JJull of Alexander Vf. Penn. Cabot. Falkland Islands. Treaty of 
Utrecht. The Oregon Territory. 

CHAPTER XIH. 

T^RMscTunroN, Doetktnf, oe. Pp. 

Roman. Privaie. Pul die. Intern.atioiial Law respecting it. 


CHAPTER XIV. 

Deutvativk AcQursiTioy. Pp. P>(jQ-887. 

), Ffti'to horninis, 2. Faefo Icgis, Competent to a State to alienate Property. 
When. U.snfructuary and Patrimonial Dominions. C.isc of Xorway in 
1814. International Transactions between St,al,c and Sulyects, and State 
and other Stiites, di.stiriguishcd. Sovereigns an<l de juni. Doctrine 

of Transference or iradiih. Modes of Transference considered: 1. ICx- 
chaogo; 2. Cession; 3. Gift; Case of Louisiana; 4. Election of Sove- 
reign ; f). Marriage Cootract ; 0. Sitcrmio ah intestafo ; 7- Testamentary 
Disposition. 


CIIAPTER X V. 

Acquisition of Rkjjits. Pp. :{88-;«)2. 

Serviiitfes Juris iientium\ 1. ^erritus nrgalivo.\ 2. Servitus affir?mtiva. As 
to Persons. A.s to Places. 



CONTKNTH. 


lix 


OI[.\rTER XV f. 

JiXTTNOTrON OP DOMFXION. Pp. ii'.Ki-AOl. 

Mnxim (»f “ Quifnis woflis afsqnlrimua ufidem in contra Hum act in omiUimun*' 
Protests. PoAtlimmium, Pwporty beconuiig extra comwerem/n. 

OHAPTEIt XVJT. 

Sj.aves and the Slave Trade. Pp. 402-142. 

Mfiii not among tlio res iwsihe in commcreh. 

1. Slavery of llio Wliite Man. Captives in War. J>arbary Powei-s. 

jlynkcrsliook’s Opinion. LonI MxmoiiLh*s Pombanlniont of Algiers. 
Occupation of jVlgiers by Kranco. 

2. Slavery of tlio Dark or Goloiipod Man. Lord St.ow<drs Opinion in 

favour of Slavery. Slavoiy contrary lo Natural Law of Nations. 
Treaty of IMris, 181 L a.s to the Slave Trade. Sulisequiuit 'IVcat.ie.s. 
Catalogue of t'Nistiug Trcatie.s on the subject. Case of Regina ??. 
Serva. Cases of Slianlcy c. ILirvcy ; of Soinersol.l the N^gpo; of 
Forbes v, Coclinuio; of Rorcaut; of Franciscpio; of the Pole; of 
the Creole brig; of the .Slav© of the Spanish Me.ivhaut lu Fmnct^. 
Jn.stniciious of Ihe Ii<u'd.s of the AdmirjYlty as to Fugitive Slaves. 
Rcporl: of t:ho OonimissioiuTS on Fugitive Slives. 

CIIAPTEIl xviir. 

KxGHT op JPKISDECTION OVER PERSONS. Pp. 443450. 

1, Over Subjects, 2. Over Foreigners comnionint in (hii Land. Native and 
Natur{Lli/.ed Citizens. Domiciled Persons. Naturalization; Laws of dif- 
ferent States rospocting. Jurisdiction over Foroignors; Laws of dilferont 
Sbites respecting. American Naturalization .4cL 18<I8. Natiiralizatiori 
Act. 1870. 


OIIAPTEll XIX. 

ExCErTIONS TO TUB T.EK)UT0KIAT4 RiGHT op JURrSDTCTION. 

Pp. 4G04Sr. 

1. Christian Sojourners in Tnfiilol Counlries. EchvUes du Levant. Rritish 

Subjects in China, 

2. Foreign Sovereigns. 

Ambassadors. 

4. .Foreign Armies. 

5. Foreign Ships: o. Ships of War; iS. Ships of Commeivc; Differgnt Kiilos 

respcjcting. 

Cases of The Exchange, The Sanlissinm Trinidad, The Priiiz Frcderik. Thc 
Nowtoii, Tho Forsattniiig. 

(MIAPTEIl XX. 

Right of Jtjrtsdiction. Pirates. Privateers. Pp. 4SS 514. 
That they dxeijmticiable everywhere. Cases and Charges of Judges in Courts 
of Admiralty. Letters of Marque and Privateers ; when they are, ami 



lx 


CONTENTS. 


when they are not, considered as Pirates by International Law. Treaties 
and private I^aws of States respecting Privateers. An alxUcated Monarch 
cannot issue Letters of Marque. Case in tlie time of James II. 

CHArTElt XXI. 

Renvoi. Exteadtxton. Pp. 616-662. 

] . The Right of a State to dismiss foreigners. Renvoi, 

2 . The General Law as to the Obligation of a State to surrender Foreigners. 

Extradition. 

3. Treaties of Extradition. 

4 . Statute Law of England on thi.s Subject. 


$art m. 

OIFAPTEB I. 

iKTBRVENTroN, Phinctple OJ*’. Pp. 66»‘{~6ii8. 

Analogous to Interdict and Injnmtion, 

Opinion of Lord Bacon. Two Kinds of Intervention. 

J. Sometimes, but rarely, in domestic Concerns of Foreign Nations. 

a. When institutions are inconsistent witli the Peace and Safety of 
other Nations. 

0 . Rights and Duties of a Guarantee. 

7 . Invitation of BcUigoront Parties in a Civil War. 

5, Protection of Reversionary Rights or Interests. 

11. When Territorial Acquisitions of a State threaten the Peace and Safety 
of other Stsilcs. 

a. Balance of Power, a Corollary of the Principle of Self-Defence. 
A Intervention on Religious Grounds : when justifiablo. Treaty 
of Westphalia. Case of Christian Subjects in tlie Ottoman 
Empire. 

Justice of the War declared by England and France against Russia in 1864 to 
be ^triod by Principles of International Law already laid down in this 
Work. 



LIST OF AUTHORITIES. 


Ixi 


LIST OF AUTHORITIES 


UEFEURED TO IN THIS VOLUME. 


A 

xEschinis ot Ddniosthpiiis Onitiones diiae contrariaj. 

AhrciiH, Cours d<j ivaturel, on do Pliilusopliie du Droit (Brux. 1844). 

A llgemoi no 0 esohi elite. 

Ainod^c Felix. {See Code.) 

Aiieillon iibor den Oeis-t dor Staatsvertassung. 

Amials of Congress. {See Congress.) 

Annuairo liistoriqno iuiiror.‘«d (1832). 

„ dos Doiix Mondcs (18i)0-i-2~3 -1). 

Ammal Register. 

Areh bold’s Critnimil Law. 

Ai’istotoles, Do Rhetorica (Ijoiidon, 1619). 

„ Ethica, 

B 

Bacon (Lord) Essays: An Advortisement lonching a Holy War. 

Bancroft Davis, Letter of on Extradition. 

Barbeyrac. {See Grotius and PufFendorf.) 

Barbosa, CoUocbinea Doctoruni in Jus Pontificium. 

Bartolus, Opera. 

Bernard, M., The Neutrality of Great Britain during tlio American Civil War, 
Blackstone’s Comnientnries on the JUiws of England. 

Blume, Deutsches Privatrecht, 

Bodinus, Do Republica. « 

Bolingbroko’s Letters on the Study and Use of History. 

>1 Letters. 

Bowyer’s Reiulings before tho Society of the Middle Temple. 

Broglie, Due do, Le Secret du Roi. 

Brown, Philosophy of the Human Mind. 

Burke^s Works, 1' racts on the Popery Ijaws. 

'» M Thoughts on tho French Rovolutiou. 

’» »» Letters on a Regicide Peace, 



Ixii 


LIST oi!^ AUTIIORTTFES. 


Burke’s Works, Jlcform of Representation in the House of Commons. 

,, „ Appeal from the Now to the Old Whigs. 

„ „ ' lA'tter to R Burke, Esq. 

„ Spt?ech on Motion relative to the hiist India Company. 

„ Speech on the Coiieiliation of America. 

Burlamaqui, Principos du Droit naturcl ct du Droit politique (1747)i— Prouch 
and English editions eitod. 

Butler (Bishop), (Sermon III.) On Human Nature. 

Bynkershoek, Qua^stione.s Juris Pabliei (Lug. Bat. J 767). 

„ De Dominio Maris (Lug. Bat. 1767). 

„ De Foro Legatorum (Lug. Bat=. 1767). 

C 

Cabinet Library of Scarce and Celebrated Tracts (publishttl by Clark, lildin- 
bnrgh, 1837). 

Camdenus in vita Elizabeth^e, ad atm. 1580. 

Canning s Speeches. 

Casaregis, Discursus Legates de Cummercio. 

Cicero, Pro Clucnfio. 

,, De R.'publicu. 

Do Officiis. 

.. Pro Milonc:. 

,j Do Legibus. 

Dc Finibus. 

Orat. pi-o Bill bo. 

„ Pro Ciocijiii. 

Clarendon (Taird), Lifo of. 

Code civil, suivi di* TExpoe des Motifs, pir Ia>crc. 

Codes, Lcs Hiiit, frant^ais. 

Codes des Etraiigers, ou Itocueil des Lois ot de la Jurisprudence anglaisc con- 
cernant lcs Et rangers (l*cli\ Aiuodoe: Paris, ]8i9). 

(Joke's Institutes of tlie I^aws of Kuglaud. 

Colquliouii's Civil Liw. 

Congress Documents; .Stjss. 1827, 1828, No. 43. (See Papers.) 

(Jonsolato del Mare. 

Corpus Juris Civilis. 

(!!orpus Juris Canonici. 

Correspondonre. Papers.) 

Cowell, Dr., The Interpreter. 

Cussy, Do. (fe Martens.) 

D 

D’Agucsseau, (Euvres dc M. lo ChanceUer. 

Dahlman, Gesehichto von DUnemurk. 

Danas Wheaton’s lOloments of luteniational Law. 

De Alirtens ct De Ciissy, Becueil do Traites et do Conventions. 



LIST OF AUTHOKITIES. 


Ixiii 


Demosthenes, Xl€p\ TrapairpeoriSefas, Kari <^i\lirvav, 
Deuisart, Collection do Decisions nouvelles. 
Dij^cst. (*SV<J Coi'pns Juris Civilis.) 

Diojiysi us Hal icarruKSiuisis. 

Dolnn, Dcukwiirdigkeiten meiner Zeit. 

Dooiat, Traits dcs Ijois. 

Dumont, Corps unirorsol diplomatique. 

Duvorgier (M.)» Collection do. (18111.) 


K 

Eilinhurgh Jleviow, No. LXXXIJ. 

Egan’s Law of Extiaulitioii. (lioudoii, 184(i.) 

Eielihorii , Kiindienrocl it. 

Elliot’s American Diplomatic Code. (Washington, 183 4.) 
Em6ngou, Tvaitc des Assurances (1783.) 


F 

Fiolix, Eeviie elrangePc do Legislation. 

„ „ do Droit intornatioriiil. (Paris, 1817.) 

!*'dck, Disserlatio JuriiL luaugiir. do servo libei'tato doiiato si EurupeC solum 
teligit. 

l^irrl iijwius, Opera. 

Federalist, The (Aiiiorican). 

Foiiolon, (1‘hivreH de. 

Fc.jT.ind, Jlistoiro des 'I’rois DemembremonU de la Pologne. 

Ferreira (l*inhciro), CommentJirics on Vaitel. 

Feuerbach, Leli rbuch . 

Flassan, Histoire do la Diplomatie fraii^’aiso. 

Foreign Quarterly Review. 

I*’i»rster, Crown Law. 

Freeland, Paper on the Alixcd Tribunals of Egypt. 


C 

Cagern (Von), Kritik des VblkerrecUU, 

Harden (Lo conite do), Code diplomatique de T Europe. 

»» I, Traitc complet de la Diplomatic (1833). 

Gazetteer of tlio World. 

Hentilis Alberieus, Hispanica? Advocationes. 

De Legationibu.s. 

*» M De Jure Belli. * 

Gent?. (Von), Fragmonto aus dor iiouesteii Goscbichto des politischou Gleich- 
gowidits in Europi : Schi*iften. 

Gibbon’s Decline and Fall of tho Roman Empire. 

Gilpin’s Opinions of the Attoraeys-Genoral oftho Unifed States. (1841 od.) 
Gotliofred (Jac.), De faniosis Ixitronibus Investigandis. 

Hronviile (fioi*d) .Speech in the Ifoiis© of Lords, on the Blockade of Norway, 
May 10, 1814. (Hansard’s P.D.) 



Ixiv 


lilST OF AUTHOKITIBS. 


Grenville (Lord) Speech in tho House of Peers, on the Motion of tbo Duke of 
Hedford, for tho Dismissal of Ministers, 22rid March, 1798. 
(Piiblishetl by J. Wright, Piccadilly.) 

„ „ Speech in the Houso of Lords, upon the Motion for an 

Address to the Throne approving of tho Convention witli 
Kussia in 1801. (Published by Gobbett and Morgan, 
Pall Mall, 1802.) 

ffrotius, De Jure Belli ct Pads, French translation and notes by Barbeyrac. 

„ Mare Liberum. 

„ Epistola?. 

Guizot, Do la Domocratie en hV.T,nce. 

„ Memoircs pour servir a rHistoiro do n>on Temps. 

„ Hist, parleincntuire de France. 

Gunther, Europaischos Vblkcrrecht. (Altenburg, 1787.) 

H 

Hale’s Pleas of the Crown. (London, 1716.) 

Hallam, History of the Middle Ages. 

HandbucU dor Schweizerlschen Stanton. 

Hansard’s Pirliamentary Debates. 

Hawkins’ Pleas of the Crown. (Tendon, 1716.) 

Hoifter, Europaischos Volkerreclit dor Gegenwart, ( Berlin, 1 848.) 

Heineccius, Preslectiones AoademicaGt in H. Grotii do J, B. ot P. Ii!)ro8 lii. 

„ Jus Natura? ct Gentium. 

Henry on Foreign Law (the judgment of the Court of Demerara in the case of 
Edwin i>. Forbes). (Loudon published by Sweet, 1823.) 

Herodotus. 

Hertius. 

HerUlet’s Collection of Cotninorcial Treaties l)et ween Great Britain and Foreign 
Powers, 

„ Map of Europe, by Treaty, 

Hobbes (Thomas), De Give, 

Holtzendorfr, Dr. Franz von, KucyklopMic dor Bechtswissenschaft. 

Homan, De Delictis Peregrinoruni, ea<|ue puniendi ratione. 

Homer, Memoirs of. 

HookePs Iaws of Ecclesiastical Polity, (London, 1705.) 

Howell’s State Trials. 

Huberus, Do Conilictu Legiim. 

Hugo, Jus Civile Antejustinianeum. 

Hume’s History. 

„ Essays. 

I,J 

Ihering, Geist des Eomischen Beebts. 

Institutioues. {See Corpus Juris Civilis.) 

Isocrates, Archidamus, Oratioucs et Epistoloc (Or. et Lat.). 

Jacobsen, Seerccht,, 

Jenkins, Sir Leoline, lafe of (Wynne's edition). 



LIST OF AUTIIOIUTIES. 


Ixv 


Jenkiiison, Treatise on the Gdverniuenti of Great Britain in 17oS. 

Johnson’s (Dp.) Works : Thoughts on the Transaetious relating to the Falkland 
Islands. 

K 

Kaltenbopn, Volkerreelit. 

Kamptz (Von), Neue Literatur des Volkerrechts (1817). 

Kant, Rechtslehre. 

Kent’s Commontaries on American Ijaw. 

Kliiikhainmer’s Disp. Hist Pol, de Belli proi)ter Success. Rogni Uispan. &c. 
(Amstolodami, 1829). 

Kluber, Europiiisches Volkerrocht (Schaffhausen, 1831). 

„ Oeffentlicfacs Rocht des deutschen Buiides nnd der Bundesstanton. 

„ Acten des Wiener Congresses. 

Kliiit, Dissertatio do Doditiono Profugorum (Utrcclit, 1829). 

Koch, Histoiro abregAe do Traitis do Puix, contiuuee par Schoell (ed. Bru* 
xelles). 

„ Tabltan dos Revolutions de VKurope. 


L 

Jjamartino, Trois Mois an Ponvoir. 

Lanfrey, Histoiro do Napoleon I, 

Lawrence’s Wheaton’s Klomonts of International Law, 
Laws of Oleron. 

Leach’s Hawkins’ Pleas of the Crown. 

L(.*5biiiu, Opera, 

Les Unit Codes fraiiQais (Paris, 1831). 

Library Alius, The (pnblislu'd at Edinburgh). 

Livius. 

Loccenii (Jo.), Jus Maritiiriuin Succiie(Holm. Kwl). 


M 

jllably, Droit public do I’lMirope fonde snr los Traites. 

Maekoldey, Lehrbucli des Bom, Tlcclits, and French Translation. 

Mackintosh (Sir James), Speech on the Recognition of South American Re- 
publics. 

„ Speech on the Blockiide of Norway. 

„ History of England. 

I, Discourso on tho LsiW of Nature and Nationl. 

„ Miscellaneous Works. 

„ . Second Review of Burke’s Letter on a Regicide 

Peace. 

Malct, Sir A., Overthrow of the Germanic Confederation in 1866. 

Manning, Law of Nations. 

Manuel du Droit I^iiblic de la Suisse. 

Manuel de Droit romain. {See Mackeldey.) 

VOL I. (1 



Jxvi 


LIST OF AUTIIOKITJES. 


Marteng (De)t Recueil de Traites (Gotting.). 

„ Nouveau ReciieU de Trailds. 

,, Precis du Droit des Gona (Paria, 1831). 

„ Prima} Lineoe Juris Gentiujii (Gott. 1785). 

„ Causes G61obres. 

„ Erziihlungen morkwurdigor Fdllo des neueren Europ. Volker- 

rechtg. 

„ Guide diplomatique. 

„ et De Cussy, Becueil de Traites et do Convoutions. 

Massi (G.), Lo Droit commercial, avec le Droit des Gens et lo Droit civil. 
Morliu, B^pertoire de Jurisprudence. 

„ Questions de Droit. 

Miltitz, Manuel des Consuls (London, 1839). 

Miriiss, Das Europaischo Gesandtschaftsreclit. 

Molloj, Do Jure Maritime et Navali. 

Montesquieu, Esprit des Lois. 

Moser, Versuch des neueston Europaischon Volkerrechts. 

Miihlonbriick, Doctrina Fandectarum. 


N 

Nepos (Cornelius), De Vita Excellentium Imperatorum (Delph. Paris, 1675). 
Neyron, Priucipes du Di*oit des Gens ouropions. 

North American Revie^v. 


0 

Ompteda, Li teratur des Volkerrechts, to 1784, continued by Von Karaptz to 
1817. 

Oppenheim, System des Volkerrechts. 

Orient, La Question d' (Paris, 1853). 

Ortolan, Diplomatic dela Mer. 

„ Des Moyens d’acquerir le Domaine international, ou Fxopri4t6 d’Etat 
entro les Nations, &c. 

Ovidius, Fasti. 

P 

Papers relative to the Affairs of Greece and Belgium, printed by the Foreign 
Ofitee, London, 1835. 

Relating to the Foreign Relations of the United States, 1873, 
Correspondence relating to the Project of annexing Cuba to the United 
States, laid before Parliament, April 11, 1853. 

Congress Documents, sess. 1827-1828, No. 43. 

Respecting Judicial Reforms in Egypt, presented to Parliament, 1868. 
(American), on the Navigation of the St. Lawrence, sess. 1827-28. 
(British), on the Navigation of the St. Lawrence, No. 45. 

State (English), during the War, London, 1794. 

State Papers. (British and Foreign. Compiled by the Librarian and 
Keeper of the Papier!?, Foreign Office. Ridgway and Sons, London.) 



LrST OJ? AUTHORITIES. 


Ixvii 


Presented to the Houses of Parliament by command of her Majesty, 1853, 
with respect to British subjects in China, 

Beport of the House of Lords respecting the African Slave Trade, July 
22. 1849. 

Beport of the Select Committee of the House of Commons on the Slave 
Trade Treaties. August 12, 1853. 

Beport of the International Commission upon Consular Jurisdiction sitting 
at Cairo, presented to the House of Lords. 

Papers relative to the Rights of Liberated Africtins, and the Prevention 
of Slave-dealing at Sierra Leone, laid before Parliament, August 12, 
1853. 

Protocols of Conferences in London relative to the Affairs of Belgium. 

Belating to the Latin and Greek Churches, laid before Parliament in 
1853. 

Beport of the Boyal Commission on Extradition, 1878. 

Correspondence relating to the Congress of Berlin laid before Parliament, 

1878. 

Correspondence with the Bussian Government respecting Obstructions to 
the Navigation of the Sulina Channel of the Danube, in Papers laid 
before Parliament, 1853. 

Corrc8})ondouoe between some, of the Continental Powers and Great 
Britain respecting the Foreign Bofugees in London, presented to both 
Houses of Parliament by Command of her Majesty, 1852. 

Belating to the Treaty of Washington. 

Bolating to Bights and Privileges of Latin and Creek Churches in 
Tnrko}’. 

Pahcal, Pensoos do. 

Pestel, De Necessitate ct Usu Juris Gentium Dissertatio. 

Philipson, Schip is Territoir. 

Phillimore (R.), Case of the Caroline Steamer, Letter to Iiord Ashbnrbjn. 

„ Pamphlet on the Case of the Creole. 

,1 Pamphlet, Armed Intervention on the ground of Religion con* 

sidored as a Question of International Law. 

Phillimore (Dr.), Prc/iico to Sir George Lee’s Reports. 

Plato. 

Plutarchus. Vitae Paralleltc (Lipsim, 1812). 

Polybius. 

PorUlis. (See Code civil.) 

Pothier, (Euvres de. 

Prevost^Parailol, La Frauce nouvello,” ^ 

Puchta, Cursus der Institutionen. 

» Pandekten. 

Fuffendorf, De Jure Naturae et Gentium (London, »SciUi. 1()72). 

» Idem, French (Amsterdam, 1712). 

»i • Idem, English (Londoii, 1717). 

Piittev, Specimen Juris Publici ac Geiitiiini Medii iEvi, 

Fnttiiigen (Do), Dio Qosolzlidui Behandluug dor Ausliiud<3r in CEhtvrreicU. 

d 2 



Ixviii 


LIST OP AUTIIOKITIES. 


E 

Kiiiimor (Von), Polens Untcrgang; Hiator. Tasclionbuoh. 

Psiyneval (GerarJ do), Institutions du Droit de La Nature et dcs Qeiis (Paris 
1851). 

Red Rook, Tbo Austrian (1870). 

Reiffenstuel, Jus Canonicum Univcrsum. 

Reports, See List of. 

Revue do Droit frnn^ais ct otraiuver. 

„ do Ii6gislaturo et do Jiunspradence (1843), t. 

„ des Deux Mondos. 

Ridley, View of the Civil Lw, 387. 

R(K!Co, Deir Uso o delle Loggi dolle Due Sicilie. 

Rulhiere, Histoiro do rAnaivhio do Poli>gne. 

Russell on Crimes. 

Euthcrfortli, Institutes of Natural Law. 

Rymer, Fffidera, Conventionos, Litene et Acta I’uMica, inter Kegos Anglia* et 
alios Principcs (London, 1704). 

S 

Saalfeld, Ilandhuch dos positiveii Volkerreclits. 

Sallustius, Bellum Jugurtliiiium. 

Savigny, System des Rrimischon Rechts. 

„ Recht des Besitzcs. 

Schilling, Pandekteu-Recht. 

Schlegel, Staatsrecht des Kdnigreichs Dancmark, &c. 

Schmalzgriiber, Jus Ecclesiasticum Uiiiversuin. 

Schmaiiss, Corpus Juris Goutium Aeademicurn. 

„ Einleitung zu der Staaiswissensehaft. 
iSchmalz, Dfis Europiiisohe VolkoiTccht. 

Schoell, Continuation of Treaties by De Martens. 

Seldcn, Mare Clausum. 

Seneca, Epistolae, 

Smith (Sir Thomas), Commonwealth of England, 

Spelmnn, Glossary. 

State Papers. See Papers. 

Statutes at Large of the United Kingdom of Great Britain and Ireland. 
Stephen’s Commentaries on the Laws of England. 

Story, Commentaries on the Constitution oi the United States. 

„ Conflict of Laws. 

Snarez, TNractatus de Logibus et Deo Legislatoro. 

T 

Talleyrand (M.), Note to the Congress of Vienna. 

Taylor Civil Law. (1756.) 

Temple’s Memoirs. (1709.) 

Thucydides. 



LIST OP AUTIIOKITIES. 


Ixix 


Tindall (Matthow, LL.D.), an Essay concerning the Laws of Nations and the 
Rights of Sovereigns. 

Tiltmarm, Dio Strafrechtspflege in vdlkerrechtlicher Ritcksicht. (Dresdoii, 
1S17.) 

Trt>plong, Dc rinfluenco du OliriHtianlsme sur le Droit civil dcs Romains. 
Twiss, Oregon Question Examined. 

„ The Duchies of Schleswig and Holstein. (London, 1848.) 

,, Ijuw of Nations. 

V 

Valin. Comnientaire sur VOrdoniiance dc la Marino. 

Vattel, Droit dss Gens. 

Voct (.1.), Comment, {ul Pandcclas. 

„ (Paul), d(i SUtutis, 

W 

Waclismnth, Jus (Tcniium apiid Grsecos. 

Waite a American State Papers. 

Wallace (E. J-), The Oregon Question. 

AValtcrshausen, Urkuiidlieho Gascbiclne des Ursprnnges der Deutschen 
Han sc. 

Ward, Liw of Nations. 

Wariikonig, Do Sludii Jiir. Rom. Utilitate ac Neces?;ilAte oratio. (1817.) 

„ Doctrina Juris IMiilosophica. 

„ Institiitloncs Juris Romani Privata. 

Wenek, Codex Juris Gentium, 

Wharton’s Conflict of Laws. 

AVheaton’s History of International Law. (1815.) 

„ Elcmoiits of International Jjaw. (1838.) 

Wheaton’s Histoiro dos Progi’^s du Droit des Gens. (1853.) 

The French Translations of those Treatises aro consUntly referrod to 
ill this AVork, liecjiii.se tlioy are of a later date, and contain additional 
matter. 

„ Histoiro des Progres dii Droit des Gems en Europe et cn Amcrique. 
(1853.) 

,, Elements du Droit international, (1852.) 

AA'icquefort , L’Ambassadenr ot ses Fonction.«i. 

Wicland, De Necessitsitc et Usu Juris Gentium, &c. (Philadelphia, 1849.) 
Wilkinson, Dalmatia and Moiitenogro. (1848.) 

AViseman, Excellency of the Civil I-aw. 

AVolff, Opera. • 

AVijck(H. A. M. Van Aseb), De delictis exti-a Regni territoriuni ailmissis. 
(Utrecht, 1839.) 

Z 

ZachariS, Le Droit civil fraii^*ais. (1854.) 

If Deutches Staats- und Rundesrecht. (Odtting. 1841.) 
louche, De Jure Feciali, sive de Judicio inter 6cnte.s. 

I* De Jure Nantico. 



Ixx 


LIST OP REl'OKT.S. 


LIST OF REPORTS. 

Eiiglish. 


A 

Acton (Admiralty) 

B 

Bai'iiewall and Alderson 

Bingliam 

Biinowa 

C 

Carrington and Payne 

Coke 

Croke 

D 

Davis, Sir John 

Denison (Crown Cases Ih-servcd) 
Dodson (Admiralty) 

E 

East 

Eden (Chancery) 

Edwards (Admiralty) 

F 

Foster and Finlason 

H 

Haggard (Admiralty) 

Hobart 

Howell (Stale Trials) 

J 

Johnson and llemininj 


Jurist, The (English) 


Koblu 

Knapp (Privy Council) 

L 

Law Eoporis, The 
M 

Moore (Privy Council) 

K 

Kobinson, Sir Charles (A«lmi' 
rally) 

Dr. William (Admiralty) 

liussell and Kyan (Crown Cases 
Eeserved) 

S 

Schoales and Lefroy (Irish 
Chancery) 

Strange 

T 

Taunton 

V 

Ventris 

Vesey 




LIST OP REPOBTS. 

Ameincan. 

Ixxi 

B 

Jurist, The 


Brockenbourgh 

Peters 


C 

ConnecticTit 

Seijcant an 


Cranch 

Sumner 


D 


V 

Dallas 

Vermont 

II 


W 

Harris and Johnson 

Wallace 



Washington (Circuit) 

J 

Wharton (State Trials) 

Johnson 
Chancery 

Wheaton 




Ixxii 


GASES CITED. 


LIST OF 


A 

Advocate-General of Bengal v. 

It. S. DoRsce. -162 
AlalMnia, The, Soil 
Alexandni, The, 566 n. 

Atnedee, The, 408 
Anna, The, 343 

Anoiiyinous Ca|jtaiQ of English 
merchantman, Gw«j otj 483 
Antelope, Tlie, 81, 4U7 
ArrogJinte BarccIoncM, The, 481 
Attorney-General of Hong-Kong 
V. Kwok-a-Sing, 502, 520 
521 «. 

B 

Benest V. I’ipon, 355 n. 

Bernard, Trial of, 526 
Bingley, Sir It., Case of, 497 ». 
Bond V. Hopkins, 37 ». 

Bonnet, Major, Trial of, 494 
Borcaut, Jean, Case of, 431 
Burvot V. Barhut, 65 

C 

Cagliari, Tlie, 474 w., 487 n. 
Calvin’s Case, 212 n., 443 
Cliarkieh, Tl>c, 143, 484 
Church, V. Hubbards, 275 a. 
Codling, William, and others. 
Trial of, 498 

Commonwealtli v. Deacon, 518 
n , 522 n. 

V. Do Long- 

champs, 518 523 n. 

Oonfetitiition, The, 431 
Creole, The, 426, 427 b., 522 n. 


1 ) 

Dawson, Joseph, and others, 
Trial of, 194, 495 
Direct United Sbitos (iible 
('ompnny v. Anglo-Anicrican 
Telegraph CoinjKiny, 290 

£ 

East India Company v. Camp- 
bell, 520 w. 

Eclipse, The. 285 n. 

Edniian and Si«ith’.s Case, 497 
Elisc Counhayo, lie, 518 
Elscl)e, Tlie, 42 n. 

Exchange, 'The, 476 477 

481 481 n. 


F 

Fama, The, 28 331 «. 

Flad Uyen, The, 38 40 

4I.«, 45 n. 

Forbes v. Coebrane, 427 
Forsattning, The, 484 
Francisciue, Tlie, 432 

G 

Gauntlet, Tlie, 568 
General Iron-^iew Collier Com- 
pany, The, V. tSchurman’s, 277 
Grace. See Slave Grace 
Guinct, John Etienne ct al., 
Trial of, 604 



CASES CITED. 


Ixxiii 


H 

Hastings, Warren, Impeachment 
of, 23 

Helena, The, 21, 85 n. 

Henfield, Gideon, Trial of, 503 
llenrick and Maria, The, 41 n., 
55 n. 

Henry v. Adoy, 61 ». 

Holmes v. Jennison, 518, 522 
Holmes, UiV parte, 522 
Hoop, Tlie, 55 n. 

Hudson V. Gueatier, 276 n. 
Hurtigc llane, Tlie, 14 n,, 23 n. 

I 

Illeanon Pirates, The, 82 
Indian Chief, The, 86 n. 
liitcrnatiunul. The, 558 

J 

Jackson t*. Lunn, 212 n. 

Johnson v. Mackintosh, 341 n. 
Jos^ Ferreire Jos Santos, C:ise 
of, 522 n 

K 

Kalnc, Thomas, Case of, 544 
Kelly V, Harrison, 212 ». * 

Kinder «. Kinder, 44 n. 

King V. Kiinlnsrly, 520 
King, The, v. Hutchinson, 511) 
Knight the Negro, Case of, 426 

L 

Laconia, The, 461 «. 

Langhorn v. Allnutt, 72 «. 

Lo Case de mixt Moneys, 73 
Le Louis, The, 38, 275 ?»., 292 
407 408 410, 459 

488 n., 490 

Lucy, The, 73 74 «. 

Lundy, Case of, 520 

M 

M acladdon v. Schooner Exchange, 
476 477 481 n., 484 ». 

Madonna del Burso, The, 22 «. 
Madrazzo V. Willis, 407 n. 


Magellan Pirates, The, 498-502 
Maria, The, 33, 41, 42, 43 
48, 55, 63 n., 64 n., 207 
214 n., 262 
Mercurius, The, 42 n. 

Messina v. Pctrococchino, 463 ». 
Mirehonse i;. Kennel, 36 n. 

Monte AlUigro, The, 481 
Mnre v. Kaye, 520 n. 

N 

Nabob of the Carnatic r. East 
India Company, 199 «. 
Newton, The, 484 

P 

Peach V. Bath, 66 w. 

Peltier, Jean, Trial of, 526 
Peninsular and Oriental Com- 
pany i; 8hand, 454 
Pilkington v. The Comniissioners 
for Claims on Franco, 73 
Prigg V. Commonwealth of Penn- 
sylvania, 435 

Prinz Frederik, The, 480,481 n. 
Progress, The, 41 n. 

11 

Recovery, The, 56 n. 

Keg. V. Belcher, 82 
— V. Carlin, 566 

— r. Cunningham, 289 
— V. Keyn, 277-280, 455 

458 n. 

— V. Lewis, 457 
— V, McCleverty, 502 
— - V. Serva, 419 424, 425, 

490 

— v. Wilson, 548 
Rex V. Ball, 522 n. 

— V. Clinton, 542 
— V. Depardo, 457 n. 

— p. Helsltam, 457 a. 

— V. M. A. De Mattos, 457 n, 
— V. Sawyer, 457 ». 
Ringeude Jacob, The, 42 
54 u. 



Ixxiv 


CASES CITED, 


Hobbiim’ (W, 544 n. 

Kose V. liimely, 276 n. 

S 

Sally, The, 484 
Siilvador, The, 466 
Santa Anna, The, 99 )t. 

Santa Cruz, The, 41, 42 ?<., 43 n., 

54 n. 

Santissiina Trinidad, The, 478 /n, 
483 n. 

Santos, Josii Fen'eire Jos, Case 
of, 522 ». 

Serhassan Pirates, The, 82 
Slianley v. Hjirvey, 426 
Slave Grace, The, 408, 426 
Snipe ,and others. The, 43 w., 

55 n. 

Somorsett’s, The Negro, ('ust?, 
426, 427, 430 

Sootragnm Satputty v. Sabrita 
Dyo, 36 n. 

T 

Tandy, Janies Napper, Trial of, 
521 

Tempest, The, 486 
Terraz, i?e, 548 n. 

Terrett and others v. Taylor and 
others, 212 n. 


Texas v. White, 188 «. 
Thompsou V, Stewart, 61 n. 
Triquet v. Bath, 66 n. 

Tronsen, Jie, 488 n. 

Twee Gebroeders, The, 36, 227, 
257 270 n., 275 n. 

U 

United States v. Smith, 489 ». 

j,. Davis, 518 

— — V. Nash, 544 n. 

V 

Villato, Francis, Trial of, 504 
V'int, Trial of, 526 


W 

Wall, Governor, Trial of, 457 n. 
Walsingham Packet, The, 43 n. 
Wasliburn, In the Matter of, 
518 M., 522 n. 

WilliauiK, Isaac, Trial of, 504 
Winslow’s Case, 548 


Y 

Ycaton v. Fry, 61 «. 


Errata. 

P, 3, note (c), line 2, for lib, xi, ch, 8, s. 2, read lib. ii. e. viii. s. 2. 

P. 26, note {o)/or InstJt, de Legit. Agaat. 1. iii., read lastit, lib. i. t. xv, 3. 



COMMENTMIES 

vroK 

INTEllNATIONAL LAW. 




Krra tti 


P. lol, line 16, for ‘‘the United States,” /‘ta// “the House of 
Hopresentativos of the United Sbitcs ” 

„ „ ,, M /or “an Act,” “ a Bill ” 

452, ,, 11, afler “this Act,” oM “But this whole section,” 

Mr. Morse observes, “ was stricken out by 
“ the Senate, which substituted the third 
“section of tJio Act of Congress, July 27, 
“ 1868; the amondnient of the Senate was 
“ coiicupied ill by the House, and the Act. 
“ as amended became the law ” 

Note line 3, for * w novel,” read “ would have been novel” 

4, for * would be,” read «* would have been 
Morse on Citizenship by Naturalization,” Law 

Ret/isfer, Oct. and Nov. 1879, p. 668 




COMMENTARIES 


UPON 

INTERNATIONAL LAW. 


CHAPTER I. 

INTRODUCTION. 

I. The great community, the universal commonwealth of 
the world, comprehends a variety of individual members, 
manifesting their independent national existence through the 
medium of an oi'ganised government, and called by the name 
of States (a). 

II, States in their corporate capacity, like the individuals 
which compose them, are (subject to certain limitations) free 
moral agents, capable of rights, and liable to obligations (i). 

(fl) ** Conununitas, peiius hnnianum aut populos couiplures 
inter se coUigat” — “jura mngnse univerBitatis.”'— de Jure 
BdU et Pacu, ProUg, 17, 23. 

“ Sod<5t68, qui fomient les natioiw— meinbtes pincipaux tie ce grand 
corps qui renferme tons lea hoinmes.*-— I* d44 ; Institution 

I^idtpuhliCfy,, yi, . • 

“Gomme done lo genre humniue compose une sodfitd universello 
divisfie tin diveises nations, qui ont leurs gouvemeurs sdparSs,” &c.— 
Domatf Traitt de$ Zom, ch. 1.1, a. 80. 

(6) D^. lib. V. tit. i. 76 : “ (De inoff. testamento) pojmlum eundem hoe 
tempore putari, qui abliinc centum annis fuiaaet, emu ex illis nemo 
nunc vwssret,’! 

1%. lib. vii, tit i. 50 ; « (l)e usufructu) an usuBfructfla nomine actio 
inttmc^pHnu dari debeat, qumaitum est, periculum enim esse videbatiir 

VOL. I, . B 



2 


INTERNATIONAL LAW. 


III. States, considered in their corporate character, are not 
improperly said to have internal and external relations (c). 

IV. The internal relations of States are those which sub- 
sist between governments and their subjects in all matters 
relating to the public order of the State : the laws and prin- 
ciples which govern these internal relations form the subject 
of public jurisprudence, and the science of the publicist — 
jm ffentis publicum {d). 

'"'V.’TThe internal relations of a State may, generally speak- 
ing, be varied or modified without the consent of other 
States — aliis inconsuUis {e). 


nu perpetiiQs tieret qtda Deque luorte uec facile capitis dioiinutioue 
jieriturus est , . . . sed tarncu placuit diuidmn esse actionem; undo 
sequens dubitatio cst quousque tuondi sunt mimicipesP et placuit centum 
flnnis tuendos esse municipes, qim is Jinis citte lonyatvi homims est.’’ 

The expresaon munidpes is identical with 7nwimpmit.-~S(iiHjpiy, 
R. R ii. 249. 

Dig. lib. xlvi. tit. i. 22 ; “ (De hdejuRfl.) hmreditas jwrwwc vtce fungUttr 
sicuti mmtcijtium, et cmin, et societas.” 

Dig. lib. iii. tit. 4: *^'Quod cujuscunque uniTereitatis nomine tuI 
contra rem agatur.” — Lib. i. s. I, 2. 

Cod, lib. ii. t. 20 : “ De jure reipublicee : 30, de administratione iv- 
rumpnblicarum ; 31, de Ycndendis rebus cintatis ; 32, de debitoribus 
emtatum.” 

ZToMcs, with his usual perspicuity: ''Quia civitates semel institutto 
iuduunt proprietates homiuum personales .” — De do. c. 14, ss. 4, Q. 
adopted this view. — Ib. 3, 13. 

Woljff, Preef . : “ Emmvero cum geutes siut personte morales ac idoo 
uonnisi subjecta certorum jurium et obligationum.” 

“Puis done qu'une nation dwt & sa mani^re & nne autre nation co 
qu'un honune doit d un autre homme,” &c. — V<Utd, Droit des Ce»s, 
liv. ii. ch. 1, 8. 3 ; " Celle qui a tort ptehe contre sa conscience” — lb. 
Prilm, s. 21. 

(e) D'Agumem,Vii. 

Blvcm, Deutsches Pricatrecht, s. 10 : " Der Stoat . . . als ideale Person 
wird er aum lebeudigen Triiger des gesammten oflentlichen Rechts.’ 

Puc/Ua, Cursus der Institutionen, s. 25, b. 73, 4. 

(d) " The Law which belongeth unto each nation — the Law that con- 
cerneth the fellowship of all.” — Hooker’s Ecdesiastical PoHtg, b. L s. 10. 

" Publicum jus est quod ad statum rei Komanie spectat, privatum quod 
ad mngulorum ulilUatem.” — Ulpian, Dig. i. t. i. s. 2, De Just, et Jure. 

(e) “ Hoc autem non est jus illud gentium proprie dictum : nequo enim 
portinet ad mutuam inter se societatem, sed ad cuj usque populi tran* 



INTRODUCTION. 


3 


VI. But in the great community of the world, in the 
society of societies. States are placed in relations with each 
other, as individuals are with each other in the particular 
society to which they belong (/). These arc tlie external 
relations of States. 

VII. As it is ordained by God that the individual man , 
should attain to the full development of his faculties through 
his intercourse with other men, and that so a people should.-, 
be formed {g), so it is divinely appointed that each individual ; 
society should reach that degree of perfection of which it is / 
capable, through its intercourse with other societies. 

To move, and live, and have its being in the great 
community of nations, is as much the normal condition of a 
single nation, as to live in a social state is the normal con- 
dition of a single man. 

VIII. From the nature then of States, as from the nature 
of individuals, certain rights and obligations towards each 
other necessarily spring ; these are defined and governed by..' 
certain laws (A). 

TX. These are the laws which form the bond of justice 
between nations, “ qum societatis humanm vinculum conti- 
“ nent ” (*), and which are the subject of international juris- 


quillitatem : unde et ah uno populo aliia hiconsidtis mutari potuit/' &c. 
—Grotius, de Jure Belli et Pacie, lib. xi, cb. 8, s. 2. 

if) “PIx hoc jure gentium introducta bella, discreto) gentes, regna 
condita, dominia distincta.” — 2%. lib. i. tit. i, s. 5. 

Jm Gentiunif however, here as elsewhere in the Roman Law, means 
Natural Law. — Grot, de J. B. et P, lib. it c. wi. tit. t 28. 

Savigntf, JR. B. b. 1, App. 

TayWt (Ml Zoto, 128. 

{g) Puchttt, Curtut der Inttitutionen, i. s. 26, b. 73. * 

“ That Law which is of commerce between grand Societies, the Law 
of Nations and of Nations Christian." — TTanfeer. ib. 

(A) “Si nulla eat communitas qu» sine jure conservari posrit, quod 
®emorslMli latronum exemplo probabat Aristoteles; certe et ilia qu® 
l^Jnus humamun aut populos compluros inter se colliget, jure indlgct,” 
Grot, Pi-oleg, 28; Vcdtel, Prelim, s. 11. 

(*) Grot, de Jure B. U P. 1. ii. 26, 




INTERNATIONAL LAW. 


prudence, and the sdence of the international lawyeiv^jr 

* ^^The strength and virtue of that law (it has been well 
said) are such that no particular nation can lawfully preju- 
’ ‘ dice the same by any their several laws and ordinances, 
'^morc than a man by his private resolutions the law of 
; ‘ the whole commonwealth or State wherein he liveth ; for 
: ^ as civil law, being the act of the whole body politic, doth 
‘‘therefore overrule each several part of the same body, so 
' ‘ there is no reason that any one commonwealth of itself 
‘should to the prejudice of another annihilate that where- 
‘ upon the whole world hath agreed ” {k). 

X. To clothe with reality the abstract idea of justice, to 
'i secure by law within its own territories the maintenance of 
right against the aggression of the individual wrong>docr, is 
the primary object of a State, the great duty of each separate 
society. 

To secure by law, throughout the world (Z), the maintenance 

(j) It ia to the English civilian Zouch that we owe the introduction 
of this con«ct phrase, the forerunner of the teims International Imw, 
now in general use.— See Fen Ompteda, laUmtlur dea Volkerrecki, s. W. 

VAjfuemau afterwards adopted the phrase jut inter gentea.—'Tom, i. 
444, 621 ; Inttit, du Droit jmfdie, vii. 2* portie, 1. 

(k) Hooker, ih., b. 1, s. 10. 

“Diritur ergo humana lex quia ptoxime ab hoininibus inventa et 
posita est. Dico auten prvxitne quia priuordialiter oninis lex humann 
derivatur aliquo inodo a lege etema.”— -Sitorss, Tractnha de LegUm 
et Deo kgidatore, c. 6, p. 12 (ed. Lond. 1070), 

“ Omnes populi qjii legibus et oioribus reguntnr, portim suo propzio, 
partim commuiu omniuni hominum jure utiuitiu',* iiam quod quisquo 
populus ipsj sibi jus constituit, id ipsius proprinm civitatia est ; 
vocaturquo jus civile, quasi jue proprium i]^us dritatis. Quod voro 
naturalisi ratio inter orones homines constituit, id apud omnes pereeque 
ciistoditur : vocaturque jus gentiiun, quad quo iure omnes gentes 
utuntur."-i)i^.lib.i.titi.8.2. 

^ (1) “ Dieselte Kraft, welche das Becht hervortreibt, bildet auch den 
•Staat, ohne^ welchen das Becht nur dn unvoUstiindiges Daseyu, dne 
prekate Existenz hatte, ohne den der gemeine Wille, auf dem da** 
Becht beruht, mehr ein Wunsch als ein wlrkUcher kraftiger Wille seyn 
vriiide”—Dttoka, Instit. xi, 27. 

“Dennoch ist sdne erste und unabweisliche Aufgabe die Idee des 



INTRODUCTION. 


6 


of right against the aggression of the national wrong-doer, is 
the primary object of the commonwealth of States, and the 
great duty of the society of societies. Obedience to the law 
is as necessary for the liberty of States as it is for the Uberty 
of individuals. Of both it may be said with equal truth, 
“legum idcirco omnes servi sumus ut liberi esse pos- 
“ sumus ” (m). 

XI. It has been said that States are capable of rights, and 
liable to obligations ; but it must be remembered that they 
ca n never be the subjects of criminal law («). To speak of 
inflicting punisliment upon a State, is to mistake both the 
principles of criminal jurisprudence and the nature of the 
leyal personality of a corporation. Criminal law is con- 
cerned with a natural person ; a being of thought, feeling, 
and will. A legal person is not, strictly speaking, a being of 
these attributes, though, through the medium of representa- 
tion and of government, the will of cci'tain individuals is 
considered as the ivill of the corporation ; but only for certain 
purposes. There must be will to found the juris- 

dict ion of criminal law . Will by representation cannot found 
that jwisdiction. Nor is this proposition inconsistent with 
that which ascribes to States a capacity of civil rights, and 
a liability to civil obligations. This capacity and liability 
require for their subject only a will competent to acquire and 
l»ossess property, and the rights belonging to it. A leyal as 
well as a natural person has this will. The greatest corpo- 
ration of all, the State, has this will in a still greater degree 
than the minor subordinate corporations — the creatures of 
its own municipal law. The attribute of this limited will is 

Itechts in der dchtharen Wdt heirschend zu maclieu .’' — Savighiff R, JR. 
h. 1, It. ii. 8. 9, 26. 

(»n) dc, pro Cluentio, 6.3. “ Dor Stant ist die Anslalt znr Iteherrsch- 
ang des in einem )) 08 timmton Voiko, das liochsto Rockts* 

institul dietier Nation.” — KaUenbom, VoUterreeht, 269. 

00 Saviffni/f M, R,, 2, 94-06, has some excellent reiuiuks on the ana* 
sobject of the capatities and liabilities of corporations in a State. 

See iVnWo Ftrrmiia Commentari^ on Vattd, wherever the word 
“punir” occurs. 



6 


INTKllNATIONAL LAW. 


consistent with the idea and object of a legal person. But 
the attribute of the unlimited will, requisite for the com> 
mission of a crime, is wholly inconsistent mth this idea and 
object. 

' ^The mistake respecting the liability of nations to punish- 
^ment, which appears in Grotius and Vatteb arises from 
;two causes : First, from an indistinct and inaccurate con- 
!ception of the true character of a State; secondly, from 
confounding the individual rulers or ministers with that of 
jthe nation which they govern or represent. The error 
may be fairly illustrated by an analogy drawn from muni- 
cipal law. Lunatics and minors, like corporations, have 
no natural capacity of acting; an art^ceVz/ capacity is there- 
fore vested in their representatives, their guardians or 
curators. The lunatics and minors are rendered, by the acts 
of these representatives, capable of dvil rights, and liable 
to civil obligations ; but the possibility of their being ren- 
dered liable to punishment for the vicarious commission of 
crime, is a proposition as yet unknown to any human code 
of municipal law. Justice and law lay dmvn the rule: 
** Ut noxa tantum caput sequatur ” (o). It does not impugn 
this doctrine, to maintain that a State may be injured and 
insulted by another; may seek redress by war, or may 
require the deposition of the ruler, or the exile of the repre- 
sentative of another State ; or may deprive a State of its 
territory w'holly or in part. These measures may be neces- 
sary to preserve its own personality and existence, the 
welfare of other States, and the peace of tlie world, and on 
;these grounds, but upon no other, they may be defensible. 

*Thesc acts, when lawful, are acts, directly or indirectly, of 

» 


(o) It is hardly necesBary to say, that the awful question of Qod^s 
dealing with sinful nations does not enter into this discussion. 

^‘Nunquam curise a provinciarum rectoribus generali condemnatione 
miilctcntur, cum utique hoc et mquitns siiadeat et regula juris antiqui, ut 
Hoxa tnntum mptJ; ^eijuaiur^ no propter unius fortasse delictum alii dis- 
pendiis affligRntur;'--^br. tit. 7; Hugo^ Jm CSw/a 

p. 1386, s. 4 ; cited S. R 2, 321. 




INTRODUCTION. 


7 


self-defence, not of punishment. It has happened, that 
corporations have been subjected to calamities which at first 
sight resemble punishments (p). Municipalities have been 
deprived of their legal personality, or have been stripped of 
their honours and privileges, as regiments have been deprived 
of their colours. But these ficts, duly considered, are acts 
of policy , not of justiejB ( g). 

We read in Roman history of the punishment inflicted 
upon the city of Capua, which had revolted from Rome, 
and become the ally of Hannibal. Reconquered Capua was 
stained with the blood of her eminent citizens, and disfran- 
chised of all her corporate privileges (r). But this, and 
other less remarkable instances of the like kind in Roman 
history, did not purport to be, and were not judicial applica- 
tions of criminal law ; but were rather acts of state policy, 
iiitonded to strike terror equally into foes and subjects {s). 

A very different principle appears in the pages of Roman 
jurisprudence, in which the obligation arising from the com- 
mission of a (stivoQ—obliyutw ex delicto — is distinguished 
from the obligation arising from the possession of a benefit 
obtained by the commission of a crime — obUgatio ex re, ex 
eo quod ad aliquetn pervenit {t). The latter, but not the 
former obligation, may bind a coiporate body. 

Under what circumstances States become responsible for 
the guilty acts of their individual members (*«) will be con- 


ip) ffavufuy, Jt, Ji. 2, 318. 

(f/j Limj, lib. xxvi. c. 16 : “ De siipplicio &c. 

0. 17: “Quod ad sujtjJniuia, ad cxpeteiidas^jcrun^,” &c. 

(r) C, IG: “Offiternm babitaii tantiim, tanquam urbem, Capiuini, 
frcquentariqne placuit : corpus iiuUuui civitatis, ncc seiiatus, hoc plobis 
conciliuin, nec luagistratiis esse; sine consilio publico, sine Imperio, 
multitu^em, nnllins rei inter se sociani, ad consensum inbabilom foro.’* 

(s) G. 16: “Confessio expi'esaa bosti quanta vis in Romanis ad expe- 
tondas pcenas ab iufidelibns sociis, et qnam nihil in Annibale auxilii ad 
nsceptos in fidem tuendos esset.'’ 

(0 Diff. xliii. t. xvi. s. 4 : “ De vi. — Si vi me dejccerit qnis nomine 
inunicipum in vtunieipes mihi interdictum reddendmu Pompomus ait, 
« quid ad eos penm^." 

(m) " Soleie pma expetendee causa bella suscipi, et supra ostendimus 



INTERNATIONAL LAW. 


d 

i Bidered hereafter. But even in these cases the State is not 
I punishable, though liable to make compensation for the injury 

I which it has sanctioned. , 

XII. Vattel describes with simplicity and truth the pro- 
vince of Inteniational Jurisprudence ; “ Le droit dcs. Gens” 
(ho says) «est la science du droit qui a lieu entre les 
« Natiotia ct Jes Btats, et des obligations qui repondent & ce 
** droit ” (a). 

The same favourite expounder of International Law does 
not hesitate to class among these obligatims binding ujwn 
the national conscience, the duty of succouring another 
nation unjustly invaded and oppressed. The fact that no 
defensive alliance formally subsists between the two nations 
cannot, he says, be alleged as an excuse for the neglect of 
this duty (y). The nation that renders the succour, is keeping 
alive that benevolent spirit of mutual assistance, the appli- 

et passim docont liistorim : ac plerumque heec causa cum altera de damno 
reparando coujuncta est, quando idem actus et vitiosus fait et dam n u m 
i-eipsa intulit, ex quilms duabus qualitatibus dum diversm nasenutur 
obligationes.” — Orothts, lib. ii. c. 20, s. 28. 

Sdendmn quoque est, reges, et qui par rej^bus jus obtinent, jus 
habere jxenas poscendi non tantiuu ob injurios in se aut subditos suos 
cumiuissas, sed et ob cas quo: Ipsos peculiariter non tangnnt, sed in 
qiiibusTis personis jus naturee aut gentium imraaniter violantibus.” — 
Jb. Ub. ii. c. 20, s. 40. 

“ Et eatenus sententiam sequimnr Innocenlii, et aliorum qui bello 
ngunt, peti posse eos qui in naturam delinqnunt: contra quam seutiunt 
Victoria, Yasquitts, Azotius, Molina, alii, qui ad justitiam belli requireru 
wdentur, ut qui suscipit aut Isesus mt, in se aut republica sua, aut 
ut in eum qui bello impetitur jurisdictionem habeat. Ponunt enim illi 
pimendi potestatem esse effectum proprium jurisdictioniB civilis, cum 
nos earn sentiamus venire etiam ac jure natural], qua de re aliquid 
diximus libri primi initio. Et sane si illorum a quibus dissentimus 
admitta^ur sententia, jam hostis in hostom puniendi jus non babebit, 
etiam post juste siisceptum bellum ex causa non ^wntttua: quod tamen 
jus plerique concedunt, et usus omuium gentium conflrmat, non tantum 
postquam debellatuni est, sed et maneiite bello ; non ex nlla jurisdictione 
civili, sed ex illo jure natuiali quod ct ante institutas dvitates ftiit, et 
nunc etiam viget, quibus in locis homines vivunt, in fiunilios non in 
ciwtetes distiibuti.”— 7J. lib. ii. c. 20, s. 40 (4). 

0. 21: “DecommunicationeiMsnrtratM.” 

(.1') JPr&m. 8. 3. 

(y) lb. 1. 2. c. xxv. 88. 1-7. 




INTRODUCTION. 


» 

cation of which she herself may one day need. To perform 
her duty to another is, in truth, to strengthen the founda- 
tions of her own security ; and in the case of the nation, 
as in the case of the individual, duty and true self-love point 

to the same path ( 2 :). 

The whole edifice of this science, pronounced by the still 
higher authority of Grotius to be the noblest pnrt ot 
jurisprudence (a), may be said to rest upon the sure foun- 
dations— first, of moral truth ; and, secondly, of historicalr 
fact *— 

1. The former demonstrates that independent communi- 
ties are free moral agents. 

2. The latter, that they arc mutually recognized as such 
in the universal community of which they are individual 
members (i). 


(s) <<Amsi qunnd uu Etat voii^ est iujustement attaqud par un 
uuiiemi puissant, qni menace de I’oppiimer, ei vous pouvez le ddfendre 
sans vous exposer & un grand danger, il n’est pas douteux que vous 
ne (kviez le fairo. N’objcctez point qu’il u’est pas pennis & uii sotivernin 
d’exposer la vie de ses soldats pour lo saint d’uu utranger, avec qui il 
u’aura coutraetd aucuue alliance defensive. Il pent lui-mme so tronver 
dans le cas d'avoir besoiu do secours; et par consequent mettru en 
vigueui cet esprit d’easistance muluelle, e’est travaillcr ant saint de sa 
propre nation.”— Liv. ii. c. i. s. 4. 

(а) Oratius, Prole 82: “In hoc opero quod partem jurisprudenrim 
lunge nobilissimam continet” 

AriitoMeif Eth. lib. i. c. 2 : ’Ayojnjriv itiv koI hov^ koWIov Si Kot 
SfioTfpov edm Kol )roA((rti'. 

(б) Dotnat, Traith des Lm, c. xi. s. 30. 

Kfdtenbom, Kritik ileo Volkerrechts, s. 206. 

“Possunt autem gentium prsecepta ad unum principium revoenri, 
quo quasi fundameiito suo nituntur. Oportet enim esse gentes vel 
respublicas, quse se iuvicem ut liberas et sni juris nationes agnosennt. 
Hac agnitione, sine qua jus gentium ne co(^tari qnidem potCBt,*eflicitnr, 
nt illsQ civitates permutrum ad instar bab^ntur, quas non minus quam 
siuguli homing caput habentee, suo jure utuntur, et mutuo juris 
vinculo inter se jungiiniur. Ilujus vinculi definitio atque ponderatio 
juris gentium argumentum est.”— Jlorfma Jtms Philowphka, 
Warnkmig^ s. 146, p. 189. 




10 


INTEBNATIONAL LAW. 


CHAPTER II. 

PLAN OF THE WORK. 

XIII. A TREATISE on International Jurisprudence ap- 
pears to admit of the following general arrangement ; — 

1. An inquiry into the origin and nature of the Imws 
which govem international relations (leges). ^ 

2. The Subjects of these laws. The original and imme- 
diate subjects arc States considered in their corporate 
character. 

.3. The Objects of these laws. These objects arc Things, 
Rights, and the Obligations w'hicli correspond to them ( Res, 
Jura, Obligationes). 

4. Certain Subjects of these laws which, though only to 
be accounted as such mediately and derivatively, yet, for the 
sake of convenience, require a separate consideration. 

These Subjects of Inteimational Law are the following 
individuals who arc said to represent a State : — 

1. Sovereigns. 

2. Ambassadors. 

Also another class of public officers who are not clothed, 
accurately speaking, with a representative character, but 
who are entitled to a Quasi diplomatic position, namely— 

Z,* Consuls, 

4. Lastly, the International Status of Foreign Spiritual 
Powers, especially of the Pope, requires a distinct considera- 
tion (o). 

XIV. Public International Rights, like the Private 


(ff) Treated of in vol. iL 



t»LAN OF THE WORK. 


11 


nights of an Individual, are capable of being protected and j 
enforced by Legal Means. f. 

These Legal Means arc of two kinds, aptly expressed by 
jurists as being (1) via amicabilif and (2) via facti. 


1. Via amicabili. 


’ 1. Negotiation. 

2. Arbitration. 

3. Conference. 

4. Congress. 


/ 1. lleprisals. 

2. Via faoli. -I 2. Embargo. 

( 3. War (i). 


When war has actually begun, we enter upon tliejus belli, 
which is to be considered with reference to 


1. The Rights of Belligerents ; 

2. The Rights of Neutrals — 

“ Sequitur cnira de jure belli : in quo et smeipiendo, et 
perendo, at deponendo, jus, ut plunmura valet, et fides” (r). 
“ For the ware (as Lord Bacon says) are no msissacrcs and 
“ confusions, but they arc the highest trials of right ” (</). 

Grotius points out, with his usual sound and true philo- 
sophy, the proper place, object, and functions of war in the 
system of International Law (e) : “ Tsmtum vero abest ut 
“ admittendum sit, quod quidam fingunt, in bello omnia jura 
“ ccssare, ut nec suscipi bellum debeat nisi ad jtiris comecu- 
“ tionem, nec susceptum geri nisi intra juris ct fidci moduin. 
“ Bene Demosthenes belliun esse in eos dixit, qui judiciis 
“ coeveeri nequount ; judicia enini vigent advereua cos cpii 
“ invalidiorcs se sentiunt ; in eos qui pares se faciunt aut pu- 
“ tant, bella sumuntur; sed nimirum ut recta sint, non niinori 


(i) Treated of in vol. in. 

^ (c) Cicero de Sep. lib. ii. c. 14; and he odds, “horumque ut publici 
interpretes essent lege sauximus.” 

(«0 Baconis TVorks, yol. v. p. »S84 (ed. Baral Montagu). 

(«) Grain Srokg. 26, de Jure Belli et Pads', though he illogically 
the treatment of it in his great work, be^nning, as indeed ho 
admits, with the end of bis subject. 



12 


INTERNATIONAL LAW. 


“religione exn'eenda qtiam jtidicia exerccri solent aucl 
again, bellum pacts causa suscipitur’’ (f). 

XV. When by use of the Legal Means of War the 
Bight has been obtained or secured, or the Injury redressed 
— post juris consecutionem — the normal state of peace is re- 
established. 

cons equen ces which follow, the Ba ti fi cation of Pcmq, will 
conclude that portion of this work which relates to Public 
International Law. 

XVI. We have hitherto spoken of Public International 
Law {jus publicum inter yentes—jus pads'), which governs 
the mutual relations of States with respect to their Public 
Bights and Duties : but, as States arc composed of Indi- 
viduals, and as individuals arc impelled by nature and 
allowed by usage to visit and to dwell in States in which 
they were not born, and to which they do not owe a natural 
allegiance, and as they must and do enter into transactions 
and contract obligations, civil, moral, and religious, with the 
inhabitants of other States, and as States must take some 
cognizance of these transactions and obligations, and as the 
municipal law of the country cannot, in many instances at 
least, be applied with justice to the relations subsisting be- 
tween the native and the foi’eigner — from these causes 
a system of Private International Law, a **jus gentium 
“privatum” has sprung up, which has taken deep root 
among Christian, though it more or less exists among all, 
nations. 

The distinction, however, between the two branches of 
IntemationalJurisprudence is extremely important. It is 
Uhis:-^ 

The oblig ationes juris privati inter gentes we not— as the 


(/) Orolm, de J. It. et 1\ lib, i. c. L s. 1. 

“ Le mal que nous faisons & I’agresseur n’ost point noire but : nous 
a^ssons en vue de notio salut, nous usons de noire dnnt } et 1 ’agresseor 
est seul coupable du mal qu’il a'attire.’' — Vattd, liv, ii. c. ii. a. 18. 
Taifior'a Ciml Law, p. 131. 


PLAN OF THE WOEK, 


13 


ohligationes juris publiei inter gentes are — ^the result of legal ; 
necessity) but of social convenience) and they are called by > 
the name of Qaaajiy—comitas genlium. 

It is within the absolute competence of a State to refuse' 
permission to foreigners to enter into transactions with its 
subjects) or to allow them to do so, being forewarned that 
the munieipal law of the land will be applied to them (y) ;i 
therefore a breach of comity cannot, strictly speaking, fur- 
nish a cams belli, or justify a recourse to war, any more 
than a discourtesy or breach of a natural duty, simply as 
such, can furnish ground for the private action of one indi- 
vidual against another (/t). 

Fora want of Comity towards the individual subjects of 
foreign State, reciprocity of treatment by the State whoso 
subject has been injured, is, after remonstrance has been ex- 
hausted, die only legitimate remedy ; whereas the breach of 
a rule of Public International Law constitutes a casus belli, | 
and justifies in the last resort a recourse to war. 

It is projmsed to treat the subject of Comity or Private 
International Law next in order to the subject of Public 
International Law. 


(j/) Nryvon, Pn'ncipes du DroU des Gms enroi)6mB, 1. chexi, c. n. 
s. 177. 

liarbeyrac, Ad Orotium, 1. ii. c. ii. s. 13. 

(/() V/iftel, liv, ii. c. i. s. 10. 




14 


INTERNATIONAL LAW. 


CHAPTEE III. 

SOURCES OP INTERNATIONAL LAW. 

XVII. It is proposed in this chapter ^ trace the source 
and ascertain the character of those laws which govern the 
mutual relations of independent States in their intercourse 
with each other. 

XVIII. International liaw has been said, by one pro- 
foundly conversant with this branch of jurisprudence, to be 
made up of a good deal of complex reasoning, and, though 
derived from very simple principles, altogether to comprise 
a very artificial system («). 

XIX. What arc the depositories of this reasoning and 
^ these princijdes? What are the authorities to which refer- 
‘ence must be made for the adjustment of disputes arising 
^ upon their construction, or their application to particular 
. instances ? What are in fact the fountains of International 
Jurisprudence — dijudicationum fontes?” — to borrow the 
just expression of Grotius. These are questions which meet 
us on the threshold of this science, and which require as 
precise and definite an answer as the peculiar nature of the 
subject will permit (i). 

XX. Grotius enumerates thiese sources as being “ ipsa 
natuTUf leges divincEf mores, et pacta ”(c). 


(a) Lord StowtU^^ie Hurtige Sane, 0 C. Sob, Adm. Sep. S26. 

(b) Arist. Eth. lib. i. c. ‘1; Ilciraidevficrav yap itrrar, tni rotrovroe 
TOKpiflis firtCfjT^v Kaff tKaarav yivos, Strov tf rov irpaypaTot ^iats fV<* 
bfXfToi ' vapaiir\ifato» yhp ^iverai, paSijpariKov Tt widavdKoyovvTot (br<»* 
Htxeirffai, koI pr/ropucov dirobti^fis (Inraireti'. 

(c) Prdlegom.: “By the law of Nature and Nations and by the 
Law Divine, which is the perfection of the other two!**— Xord Bacon, Of 
an Holg War, 


SOUBCES OP INTERNATIONAL LAW. 


15 


In 1753> tlie British Government made an answer to a 
memorial of the Prussian Government (</) which was termed 
by Montesquieu reponse sans replique (e), and which has 
been generally recognized as one of the ablest expositions of 
international law ever embodied in a state paper. In this 
memorable document, " The Law of Nations ” is said to be 
« founded upon justice, equity, convenience, and the reason 
“ of the thing, and confirmed by long usage.” 

XXI. These two statements may be said to embrace the 
substance of all that can be said on this subject. An attempt 
must now be made to examine in detail, though not j)recisely 
in the same order, each of the individual sources set forth in 
the foregoing citations. 

XXII. Moral persons are governed partly by Divine Law) 
{leqes divma), which includes natural law — partly, by posi-?^ 
live instituted human laAv, which includes written and un-| 
written law or custom (/«« scriptunty non scriptum, con- < 
snetudo). 

States, it has been said, arc reciprocally recognized as 
moral persons. States are therefore governed, in their 
mutual relations, partly by Divine, and partly by positive law. 
Divine Law is either (1) that which is written by the finger 
of God on the heart of man, when it is called Natural Law ; 
or (2) that which has been miraculously made knoAvn to 
him, when it is called i-evealed, or Christian law (/). 

XXHI. The Primary Source, then, of International Juris- 
prudence is Divine Law. Of the two branches of Divine Law 
which have been mentioned, natural law, called by jurists 
jus primarium, is to be first considered. “ In jure gen- 
"tium”(y), Grotiussays, ^*jus natune includitur;” and, 
again, “jurepnmo gentium quod et naturale dicitur.” 

AU civilized heathen nations have reco^ized this law as 

id) (Mmut of Scarce and Celebraleil Tracts, 1 vol. (Ediuburgli), 

(e) Litres persancs, liv. xlv. 

(/) Arist. Mk, lib. v. c. 7. St. Paul’s Ep. to tlie Romans, ii. 14, 16. 

0) itfwe laberunt, lib. v. ; Merlin, Jtep. de Jiirispr. tom. v. p. 291, 

‘ Qanc autem qumstioiiem ad jus Natwee ideo retulimus, quia ex historiis 


I(J. 


INTERNATIONAL LAW. 


binding upon themselves in their internal relations. They 
called it unwritten, the innate law — the law of which 
mortals- had a Divine intnition (A)— the law which was 
begotten and had its footsteps in heaven, which could not 
be altered by human will (i), which secured the sanctity 
of all obligations — the law which natural reason has rendered 
binding upon all mankind (A). 

XXIY. It has been often said that the civilized heathen 
nations of old, the Greeks and Romans, recognized no such 
law in their external relations ; that is, in their intercourse 
with themselves or with other nations. But this conclusion 
is founded on slender and insufficient premises, chiefly upon 
the absence of distinct treatises on the subject, on the want 
of a distinct phrase expressing the modem term international 
law — on the etymological meaning of words — on the use of 
** jm gentium ” in the repositories of Roman law, as an 
expression identical with jus natures — and on the practical 
contempt for the law, exhibited in the unbounded ambition 
and unjustifiable conquests of ancient Rome. 

XXV. Nevertheless, we know that Aristotle passed a 
severe ceasure upon those nations who would confine the 
cultivation of justi<^, within the limits of their own territories 
and neglect the exercise of it in their intercourse with other 
nations (/). Thucydides (m) prefers the same charge against 

nihil compeiire potuimus ca de re jure volimtario gentium esse conslitu- 
tum.” — Grot. 1. iii. v. 6. 

(A) Arut. JRhet, b. i. c. IH : *l9iov ftio rhv imarott iapurfuvov irpot 
avTOvs’ KOI TOVTov TOP fttv 3ypaff>ov, rov dc yeypaitfitvov. Kotvov ii rnv 
Kurh (fkvoriv tern yop, o pavrtiovral rt Trdvrerj^tftvo’Ci koip&p biKainv koi 
ilbtKOVf kAv fufitpia Koimvia irp6s dXXqXovr jj, prjiR awOffiai. 

(t) Smh, Antiff. V. 460-7 ; irfriirobtg tmpoif CEd. Tyr. 8^. 

(k) vie. Pro MUone, 3; Ih Bqh 1. iii. c. 32. 

{t) Athrot piv yHjt trap’ avrols t6 btmUts ilpKtiv (jfrovtri) npas At 
roit ftXXovr ov4ep piXtt rSo butalav . — PUit. lib. viL c, 2, And when 
he is discuaang the dilTerent ends of di0erent kinds of orntoiy, and 
observing that the speaker in the public assembly dwells on th(« inc-^* 
pediency and nut the immorality of a particnlmr course of actions 
is It oin iSSutov root mfroyttrovat KarodovXovtrdoi, itot raif 
abumvvras, sroXXdxis oidiv ^pomfovorip.—JRAst, tom. i. C. 3. 

(m) Jffst, lib. V. 




SOUnCES OF INTEENATIONAL LAW. 17 

the Lacedasmonians, which is repeated by Plutarch (n) ; 
and we fiud Plato demanding (o), with indignation, whether 
it was reasonable to suppose that any society could flourish 
'which did not respect the rights of other societies. We 
find Euripides speaking of the natural equality of rights 
as binding city to city, and ally to ally (/;). Wo find 
Theinistocles claiming the right, communi jure yentium” 
of placing Athens in a state of defence (y). We find, 
that the rights of embassy were respected — that treaties 
were ratified by solemn sacrifices (r), and placed under- 
the especial care of the deities, who avenged violated 
faith. We read of the memorable Amphictyonic league, 
which constituted the tribunal of public international law 
for the different States of Greece. These and other historical; 
facts demonstrate that the appUcation of the principles o^ 
natural justice to international relations, however imperfectly^ 
executed, and though never reduced to a system, was not 
unknoAvn to Greece. 

XXVI. We ai’e led with yet more certainty to this 
conclusion with respect to Borne, by the consideration of two 
remarkable institutions which existed there : — 1. The Col- 
legium Fecialium, with the Jus Feciglf^jjj^ which could not 
be better translated than by the words “ Public International 


(«) Plutarch, Vita Agesilai, 

(o) HoKui &» SdiKOP tinai Kol jXXar irdXcts iavXovtrffat 

aduemt Kai KaradfdovXmr^ai, TroXXigdetiai wft eavr^ f\€UfbovXwiTaiJi4vrfv\ nSr 
yap at)K ; , , , dXXa Kot rdSc fun xapurai K(il Xryc ■ doKtig &p 

noXip, rj crrparvtrtbov, ij Xjja^s, ^ icX^irros, t) SKXo n (Ovos, Sera leotvg twi 
Ti Ipxtrai iitKae, trpaj^'^p n dvvatrOat ti dducotev dXX^Xovr ; Ov Sqra, 7 
V os. Tt 8 ’ ti p,^ 48(Koiei>; ov paXXov’, Hdw yt, k,t.X. — De lib. i, 22-41. 

ip) Kuvo koKXmv, TtKVov, * 

ladrrira rtpqv, f) ^iXovs dfl (ftiXois 
srdXcts r« iroXccrt trvppaxovs rt avppdxois, 
ivv9ti, r6 yip laov vdpipav dr$pim(us 

Phemusa, 636. 

( 9 ) Oonulhu Nepot, Vita Thetuutoe. 

(»•) Livg, 1. xxiv. 

/*} Zouch’s Treatiise on Internstioual Law is entitled "I)e Jure 
reeuUi,jiye, do Jure inter Gentos." 

T^OL. I. 0 


386 ^ 1-6 



18 


INTEBNATIONAL LAW. 


Law.” 2. The institution of the Recuperatorest with the 
dootiiue of. the the precursor of that system 

wliich is now called " Private International Law.” Traces 
of the same fact are abundantly scattered over the pages of ‘ 
Latin authors, legal* historical, and philosophical. The 
phrase “jus gentium,” in classical writers, and in the Jus- 
tinian compilations of law, is indeed generally (though not 
without exceptions) used as synonymous with natural law(^) ; 
for there are passages in these compilations, as well as in 
the pages of Sallust and Livy, in which the phrase, strictly 
speaking, denotes international law. The fact, moreover, 
that the expression ** jus gentium, ” was used as synonymous 
with what is now colled “jus naturah ” is by no means 
inconsistent witlt the position, that the principles of natural 
law were, theoretically at least, recognized by Borne in her 
external as well as her internal relations (m). 

A cursory reference to the works of Cicero alone will show 
that in his time, and before the destruction of the Kepublic, 
the science of international law was beginning to receive 
great cultivation in all its branches ; nor can the necessity 
and duty of international obligations be more forcibly incul- 
cated than in these works : “ Qui civium rationem habeudom 
“dicunt, exteronim negant, hi communionem et sodetatem 
“ humani generis ilirimiint.'^ ^ 

Cicero praises Pompey for being well versed, not only in 
what is now called Conventional or Diplomatic Law, but 
also in the whole jurisprudence relating to Peace and War. 

C/ccro maintains, that God has given to all men conscience 
and intellect; that where these exist, a law exists, of which 
all men are common subjects. Where there is a common latv, 

(t) Puehta, hufit, ^2. .Sue Appendix. 

(«) Taylor, p, 128. “ The law was natural law before : the existence 
<»f this situation only givt* its use and application. Suppose the ob- 
sen-ance of faith to be a rule of nature : when, to speak in the lan- 
guage of the Schools, it is Jm Natura td> uriyine et cawa f^oxitnUj it i*) 
Jim (i&}tiunt a mhjecto!^ And ag;aiu ; Contracts woro introduced l>y 
the law of nations ; no new law is formed, but an eternal and necessary 
law has now a scene to exert its operations in.” 



80UBCES OP INTERNATIONAL LAW. 19 

he aigues, there is a common rights binding more closely and 
visibly upon the members of each separate State^ but so 
knitting together the Universe, " ut jam universus hie mun- 
'"dus una civitas sit, communis Deorum atque hominum 
" existimanda ” (.r). 

That law, this great Jurist says, is immortal and unalter> 
able by prince or people, and in glowing language he 
anticipates the time when one law and one God will govern 
the world : ** Neque erit alia lex Bomae, alia Athenis, alia 
** nunc, alia posthac ; sed et omnes gentes et omni tempore 
** una lex et sempiterna et immutabilis continebit, unusqne 
“erit communis quasi magister et imperator omnium 
“ Deus ” (?/). 

XXVII. The subject which has been just discussed is not 
one of mere literary curiosity or philosophical research. It 
has indirectly a practical bearing on the theme of this 


(.r) De Sep. Tlw Epistles of Seneca, the contemporary of St. Paul, 
breathe the very spirit of Christian Inwtherhood and unity: " Philosophia 
d(jcuit colero diviiia, humana dilujere, et penes Decs imperiuoi es.se, infer 
homines muortium” (Ep. 9C). “Homo, sacra res honiini— omne hoc 
quod vide.s, quo divina ah^ue humana conclu.sa sunt, unura est : vtembra 
sumus corporis inogtu, tiafura nos coffnatos edidit, quuni ux iisdem et in 
eadem g;igneret. Ilsec nobis iwuwem dedit miduitm et sociahiles fecit” 
(Ep. 00), 

Trojdony, de Vlnfltmce dn VhrUtmmsme stir le Droit dril des 
limnains~'p. 70, &c. 

“Homo sum: bumani nihil a me alieuum putu,” is the laii^age 
which Terence puts into the month of one of his ch&racU}i%—Ile(mfajh 
iimor. act i. sc. i. S5, 

(y) De Sep. lib. iii. c. xni. See also De Legdms (lib. i. c. vii.), and a 
noble passage (lib. i. c. xxiii.), where he bids his hearer elevate his 
mind to the prospect of the universe, its rules, and its laws: “ Seset^ue 
nun uuius cirenmdatum moenibos loci, sed eivem totiiis mundi*qw«si 
iimis urbis agnoverit.’’ 

“ Of Law there can he no less acknowledged than that her seat is 
the bosom of God, her voice the hanuony of the world : oil things iu 
heaven and earth do her homage— the very least os feeling her care, 
and the greatest as not exempted from her power; both angels and 
men, and creatures of what condition soever, though each in ^fTerent 
sort and manner, yet all, with uniform consent, adminug her as the 
mother of their peace and joy.”— JTcofcr, iJ. b. i. 



20 


INTERNATIONAL LAW. 


treatise. The same school which denies that the polished 
nations of antiquity recognized international obligations, 
iiises the assumed fact as an illustration of a further and 
imorc general position — namely, a denial that any general 
International Law, not the 1‘esult of positive compact, exists 
ibetween Christian nations and those which are not Christian. 

XXVIII. This position, it will be seen, directly conflicts 
with the prmciple just enunciated ; and, on the contrary, 
the first important consequence which flows from the 
influence of Natural upon International Law is, that the 
latter is not confined in its application to the intercourse of 
^^Christian nations, still less, as it has been affirmed, of 
^European nations, but that it subsists between Christian and 
"Heathen, and even between two Heathen nations, though 
in a vaguer manner and less perfect condition than between 
two Christian communities ; so that whenever communities 
come into contact with each other, before usage or custom 
has ripened into a quasi contract, and before positive com- 
pacts have sprung up between them, their intercourse is 
subject to a Law (z). 

Lord Stowell, in one of those judgments in the British 
High Court of Admiralty which contain a masterly cx- 
l)Osition of the principles of International Jurisprudence, 
speaking of the then Mahometan States in Africa, observed, 
“ It is by the law of treaty only that these nations hold 


(s') So Mr. Jenkimon (afterwards Earl of Idverpool), in his able trea- 
tise “(hi the Condiict of the Government of Great Britain in 1768,’’ 
ohsems (p. I shell therefore examine the right which neutral 
powers clmm in this res^t, first, according to the law of nations— that 
is, nc(jprding to th(^» principles of natural law which are applicable to 
the conduct of nations, such as are approved by the ablest writers and 
pfictised by States the moat refined. I shall then consider the altera- 
tions which have been made in this right by those treaties which have 
been superadded to the law of nations, and wMch communitieB, for 
th^ mutual benefit, have establisbed among themselves.” 

“ Jus hoc (i.e. non ut jus natiuale ex certis rationibus cert<> 

oritur, sed ex voluntate gentium modum accipit.” Here the distinction 
petween natural and conventional international law is clearly laid down, 
— (rrot. lih. ii. c. xviii. 4, 2, 



SOUKCES OF INTEENATIONAL LAW. 


2i 


<< themselves bound, conceiving (as some other people have 

foolishly imagined) that there is no other law of nations, 
“but that which is derived from positive compact and con-’ 
“ vention ” («). The true principle is clearly stated in the 
manifesto of Great Britain to Russia, in 1780; “ His Majesty,’’ 
it is said in that State paper, “ has acted towards friendly 
“and mutual powers according to their own procedure 
“ res})ecting Great Britain, and conformable to the clearest 
“ principles generally acknowledged as the Law of Nations, 
“ being the only law between power's where no treaties sub- 
“ sist, and agreeable to the tenor of his dilFerent engagements 
“ with others ; these engagements have altered this primitive 
“ law by mutual stipulations proportioned to the will and 
“ convenience of the contracting parties ” (A). 

Montesquieu was not ignorant, as has been supposed, of 
the science of Interaational Lanr when he said, “ Toutes 
“ Ics nations out un droit des gens ; et les Iroquois memes 
“ qui mangeut leurs prisonniers cn ont un. 11s envoient et 
“ re 9 oivent des ambassades ; ils connoissent des droits de la 

guerre et dc la pmx : lo mal est que ce droit des gens 
“ n’est pas fond^. sur les vrais principcs ” (c). In other 
words, these barbarous nations acknowledged, even while 
polluted by such abominations, tliat certain rules were to be 
reciprocally observed in their intercourse with each other, 
whether in Peace or War — even as the savages who practise 
infanticide do homage to the Moral Law in holding ingra- 
titude to be infamous. 

In the same spirit an eminent Avriter on English Criminal 
Law (</), speaking of the immunities of Ambassadors, says : 
“ But for murder and other offences of great enoi’mity, which 


(n) 2%e Hdem, 4 C. JRob. Adm. Rep. p. 7. 

(h) Ann. Regis, toI. xxui. p. 348, Mauifesto of Euglaud to KuMMia, 
April 23rd, 1780. 

(c) Mmtesqttim, de PEsprit des Lois, lib. i. c. iii. 

(<0 RosiUr on Crown Law, p. 188; Wards Law of Nations, 
p. 542. The cometnew of the application of this principle to the case 
of amhanadon will he conridered hereafter. 



22 


iNTKJtNATIONAL LAW. 


** are against the ligM of ‘mature and the fundamental laws of 
‘‘ all society, the persons mentioned in this section are 
“ certainly liable to answer in the ordinary course of justice, 
as other persons offending in the like manner are. For 
“ though they may be thought not to owe allegiance to the 
Sovereign, and so to be incapable of committing high 
"treason, yet they are to be considered as members of 
" society, and consequently bound by that eternal universal 
"law by which all civil societies ai^e united and kept 
" together ” (e). Vattel says: "Les nations ctant libres, 
" independantes, egalcs, et chacunc devant juger en sa con- 
" science de ce qu’elle a d faire pom* reinplir ccs devoirs^ etc., 
" cello qui a tort i)^chc centre sa i‘onscience ”(/)• 

XXIX. But if the precepts of Natural Law arc obligatory 
upon Heathen States in their intercourse with each other, 
much more are they binding uj)on Christian Goveruments in 
their intercourse witli Heathen States. 

Infidel Nations indeed are, it has been frequently holdeu, 
entitled, in the absence of any compact, to an indulgent 
application of rules derived exclusively from the positive 
law and established custom of Christian States (<7), though 


(s) ill the Annual JRajister for 1840, vol. Ixxxii. p. 420, the Chines* 
Oommiiisioner'fl letter to the Queeu of England, in which he recc^nizes 
“ the principles of eternal justice ” as binduig between nations. 

{/) yuttel, Pr6Hm, s. 21. 

if) Ijord Stowell speaks of tho Ottoman Porte as a State long con- 
nected wth this country by ancient treaties, and at the present day 
(t.e. in 1802) by engagements of a peculiar nature. “ Hut,’’ he adds, 
" independently of such engagements, it is well known tliat this Court 
is in the habit of showing something of a peculiar indulgence to 
perso^ of that part of the world. The inhabitants of those countries 
are not possessors of exactly tho same I^aw of Nations with oiuselves. 
In consideration of the peculiarities of their situation and character, 
the Court has reiieatedly expressed a disposition not to hold them 
liound to the utmost rigour of that sj'stem of public laws on which 
European States have so long acted in their intercourse with one 
another.”— '27ie Madonna del jBureo, 4 C. JRob. Adm. Sep. p. 172. 

And again he says ; “ It has been argued that it would be extremely 
hard on persons residing in the Kingdom of Morocco, if they riiould he 
held hound 1^ all the rules of the Law of Nadona as it is practised 



S0CR0E8 OR INTEltMATlONAL LAW, 


23 


the application of rules even from these sources becomes 
more stringent as the intercourse increases between the 
Christian and the Infidel community. 

The great point, however, to be established is, that the] 
principles of international justice do govern, or might to| 
govern, the dealings of the Christian with the Infidel Com*i 
munity. They are binding, for instanee, upon Great Britain/ 
in her intercourse with the native jwwers of India ; upon^ 
France, with those of Africa ; upon Russia, in her relations: 
with Persia or America ; upon the United States of Nortl^ 
America, in tlieir intercourse with the Native Indians (A). ' 

The violation of these principles is indeed sometimes 
urged in supjxirt of an opposite opinion, but to no purj)ose ; 
for it is clear that the occasional vicious practice cannot 
affect the reality of the permanent duty. 

XXX. Unquestionably, however, the obligations of 
International Law attach with greater precision, distinctness, 
and accuracy to Christian States in their commerce with 
each other (i). The common profession of Christianity both 


among European States. On many accounts, undoubtedly, they are not 
to be so strictly cousideind on the same footing as European merchants : 
they may, on some points of the Law of Nations, be entitled to a very' 
relaxiid application of the principles established by long usage betwmi 
the States of Kuropo holding an intimate and constant intercourse with 
each other.’' — The Ritrlige Hunt, 3 C, Rtb. Adm. Rep. p. 320. 

(A) llydor Ali was invited by France and England to accede to the 
treaty by which the statns quo an/e beUmn was established in Indb. — 
Whealun's History of Int. Zajc, p. JJOS. 

Ileineediu, la Orotium I'raf. r. i. p. 14 ; “ Quid vero si gens qumdani 
cum 'Jhtrds vel Sinenttbusf &c. 

“Now, having contended, os we still contend, that tliu J^w of 
Nations is the law of India ns well as of Kurape, because it is the law of 
reason and the law of nature, drawn from the pure soiuces of morality, 
of public good, and of natural equity, and recognized and digested into 
order by the laboiu* of leanied men, I will refer your Lordships to 
Vattel, b. i. c. xvi., where he treats of such engagements," &c. — RiirJce'a 
Win-h, XV. loo (Speech on the Impeachment of Warren Hastings); 
6 Craneh Rip. (American}, p. 1 ; 3 Rep. (American), p. 1 ; Kenf’s 
Com/uentarieSf vol. iii, p. 382 ; JFhcaton’a Rhments du I)roit Interna- 
tioHfli, I 60. 

(0 The Canon Law, which is in some respects International Eccle* 


24 


INTEKNATIONAL LAW. 


enforces the observances (j) of Natural Law, and introduces, 
according to the language of Bartolus, a speciale jus geritis 
^^Jiddls (A), a new and most important element into this 
as into all other systems of jurisprudence ; Christianity 
imparts a form and colour of its own to those elements ot 
public justice and morality which it finds already existing 
in these systems, while it binds together by close though 
invisible ties the different members of Christendom, not 
destroying indeed their individuality, but constituting a 
common bond of reciprocal interest in the w<.4fare of each 
other, in lieu of that exclusive regard for isolated nation- 
ality, which was the chief, though certainly not the sole end 
proposed to itself liy the Heathen State. The language 
of the principal treaties of Europe fully recognizes this 
doctrine (/). 


siastical fjiiw, look distinct and especial co^nizaiK’u of (Lnua-al 
InternailoJial Ijaw, and valuahle remarks upon it nm to 1)»? fbund in 
the coimnontiitors on the Devrcfinn, Deercf, Vrima rai\\ di.'t. i. 
c, ix, : “Jus jreiitiiun ost sodium oceupalio, a'dilicatio, innnitio, belhi, 
captivifiites, «ervilu1.es, postliininia, fojdera, paoos, indneia*, le;/atovinn 
non violamlortini i*eli^do, eoiimibia inter alitMji^ciuus pvofiibita (sect. I). 
Hoc indy jus trenliuin appollalnr, quia eo jure omnes fore gonto^ 
iituntur.*' Xlio great Purtuguode canonist, Barhusu^ obsorvos on tlii.s: 
“ !Si prince ].)?? velit vd jm tfmfoiu) primarin/n, rd AHunthirlinn inlr:i 
hui iinprrii liinitos abiogaiv, potestato siia abuli cciisondus ost." • 
Barfiv-^. ('oiled . in c. i\. didt. i. See, too, lid fend nd and i<c/onftlz- 
tjrvdK-rm tlie same ]\a<s{igc in the Ihrrdtun, 

i f) (leincMit ibo Fifth, in liiy Bull “ Pasloralis:’ aiinnlling tlio pv- 
traordinary picmi-legal procedure by which Ibe FiTi])eror Henry Vll. 
meant to deprive Roliert, King of Kaplo.s, of bis kingfbau, siat<‘d 
among otlier imsnn.s, tliat RolKui had boon dr'privcd of a natural right 
viz., the moans and opportunity of defending liims<‘lf: “ IVr qmo de 
crimine prfesortim .sic quasi dololo (b.*fensioni.s a jure pyirvnif 

imturalf) facultas adimi valuisset;’’ and, ho adds, (Mm ilia irnpv- 
raiori (olkre non licuvrit qim jam naturalis p.ristmiV' — VlemviUf 1. ii. 
t. xi. 

(k) “»Si enim juH gentium do servituto captivorurn in hollo jiisto iu 
ICrclesia niutatmn est, et inter ChristiaTios id non sorvatuv ex antiqun. 
I'lccly.siie consiiotiidinf? qiim est voluti upmalr. ju^ tjpnlis Juldis ut iiotiivit 
JitrtoluH in 1. hofstis h. de oaprivis, n. 10.” — fHunrcz^ Hk c. xx. s. 8. 

(/) Treaty of Wedphalin {Mumter)^ KJ48: “Au nom et ft la gloiro 
do IHenj iJ'oit notoire ft toiip, etc. ; eiix Seigneurs Roi et Etats touchtJs 



SOURCES OP INTERNATIONAL LAW. 


25 


XXXI. This wouhl he called by many who have of late ; 
years written on the science, International Morality ; they ^ 
would restrict the term Law absolutely and entirely to the 
treaties, the customs, and the practice of nations. 

If this were a mere question as to the theoretical arrange- 
ment of the subject of International Law, it Avould be but 
of little importance ; and the disputes to which the dilFcrcnt 
modes of treating the science have given rise would perhaps 
be found, upon careful examination, to resolve themselves 
for the most part into disagreements of a verbal character. 
But it is of great practical imiwitauce to mark the subordil 
nation of the law derived from the consent of States to the 
law derived from God («i). 


CGiii|uission ehi'f'lienm, etc. : an l)ioii non-soulement des Payj^Ba;^, 
niais de ioute la vhrftityiif(% couvians et prians les autnis Vriiioes ot 
l*<»Uiiitats d'icollti de lai'iser Hoebir par la Grave Divine a la m?nio 
ctniipfirwitm/’ .tc. — Svkmaim, Vorpaa Jto\ Gent, Arad, i. 614. 

Treat If of PariHf 176*?: “An nom do. la Iros-sainlo ot iiidivij=iiWo 
Triai/v, Port', Pils, ot Sahit-Esprit, aini?i Sviit iiotoin' a tmis 

coux (ju’il apparlioudra, etc.: 11 a plu an Tovf.’pnimnt do ivpandro 
ro.-^pvit d’uni.m ot do coiu‘ord(3 siir IVincos, dont los dhisions avoioiit 
]K.»vt6 \v troiiWo dans los f[uatro pariios du moiido, etc. (Arlic. L) 
11 Y aura iin«? J\n.v vh'etieiine iiiiivorstllo t;t porpotuelle/’ — 


ITencIcii Cudv.v JuriM Genfinm^ iii. 

Trvatii of Vtreiht, “(^uoriiam visiim est Deo oplimo luaxiiiio, 

pro Mniiiiiii.s Mii j^doria ol saliile iiuiversa, ad niisorias dosoluti orlwAjam 
siio in liMiipDro luotloiidas, ita roirnin aniinos diri<-^oro ut mutuo pacis 
sludiocijL^a so iijvicoin ^'oraniur; iiotum sit, «\:c. : quod sid) his Dirinis 
atispu iis Smai. ao Pnlioi. Princops el Duiuina Aium, «S:c., ot S. ac 
P. Ih’in. cl Doiu. Luduvious Xl\'., &c., totius CJiri?ifiafn vrhi'i tmn- 
<iniiruiili prosjiicioiitt's, Ac. suo prtiprio uiolu cl palcnia ea ciira quaiu 
♦‘iva snbdito.s siios ct llrmpnb/ieam Chriatiavam excrcero amtuu,” &c, 

Svhtnansfi, ii. Idli. 

Treaty of VersaillrSy 1783, Art. 1 : “II y aura iino Pair ehretienne 
uniYorsolle et perpCduello tiuit par luor quo par terror kc,—XecHfil de 
Traith et do Vomcntitnis^ Dc Martem ct De i. 301. 

Treaty of Vienna^ J815: “Au nom do la tros^saiiito et indivisihle 
Trhnl6T — Do A/, et C. iii. 61. 

“ Deux lois rtuftisent pour rdgler ionic la rcpubliquc chretiennCf 
mieux quo toutes los lois politiques — ^I’amoiu* de Uieii, et celui du pro- 
Peneteen, part ii. art, xvii. 

{in) Savigny, R, It, i. 80 ; BnrkCf vol. viii. 182, Letlers on a Regicide 

Reave. 



26 


INTERNATIONAL LAW. 


XXXII. One important practical inference from this 
position is, as has been shown, the necessary existence of 
International Obligations between Christian and Heathen 
States. Another practical consequence is, that the Law 
derived from the consent of Christian States is restricted 
in its operation by the Divine Law ; and just as it is not 
morally competent to any individual State to make laws 
which are at variance with the law of Ood, whether natural 
or revealed, so neither is it morally competent to any assem- 
blage of States to make treaties or adopt customs which 
kioutravene that Law. 

Positive Law, whether Xatioual or International, being 
only declaratory (w), may add to, but cannot take from the 
prohibitions of Divine Law. “ Civilis ratio civilia quidern 
“jura corrumpere potest, naturalia non utique ” («), is the 
language of Koman Law; and is in harmony with the 
voice of Inteimational Jurisprudence, as uttered by Wolff; 

Snarez, do Lei/dnt« a Deo Leyidatoref I. ii. c. ii. s. 0, tit. “ De Loge 
/Etema et Natural! ac Jure Qeutium.” 

Ovot. de J. B. ^ P, 1. u. c. iii. a. 0. 

Vbet ad Pandectas, lib. i. t. i. a. 19. p. 1 1 . Vatiel, Preef. 22, 

“ Quod ai populoruui jussia, ai principam docretis, ai aontentiis judi- 
cum, jura coiistilucrentnr : jus eseet latiocinari ; jus adultoraro; jus 
testamenta falsa supponore : si hssc sulfragiis ant scitis mnllitudinU 
probarentur. Quio si tanta potestos est stiillorum sejitontiis aUpie 
jussis, ut oorum snlVrngiis leruiu naliim \ertnlur: c\ir non sanciunt 
ut quse mala pcrniciosmpie sunt, babeantm pro 1x>ius ac salularibus? 
aut cur, qiiuin jus ex injuria lex faccre possit, bonum oadem faccre non 
possit ex malo P Atqui nos legem 1x>iiam a mala nulla alia nisi naturio 
iioma dividere possumus.”— Cfc. de Ley. 1. i. c. xvi. 

(») “ It would be hard to point out any error more truly subvomivo 
of all the order and beauty, of all the peiuse and happiness of liuman 
society, than the position that any body of men have a right to make 
what laws they please, or that laws can derive any authority from their 
institution merely, and independent of the quality of the subject matter. 
All human laws are, properly speaking, only declaratory. They may 
alter the mode and application, hut have uo power over the substance of 
original justice.” — BurJee's Treat, m an the. Popery Lawe, 

“ That power which, to he legitimate, must he acct^rdiug to that im- 
mutable law in which will and reason are the same.” — Burke's WorkSf 
vol. V, p. 180 {Thoughts m the Frmoh Bevdlulion), 

(o) Jnstit. de Legit. Aguat, 1, iii. 



sorncES op international law. 


67 


Absit vero, ut oxistimesj jus gentium voluntariiim ab 
“ carum voluntate ita proficisci, ut libera sit earum in eodcm 
“ condcndo voluntas, et stet pro ratione sola voluntas, nulla 
habita ratione juris natnralis ” (;>). 

Upon this principle we may unhesitatingly condemn as' 
illegal and invalid all secret articles in treaties opposed toi^ 
the stipulations which are openly expressed. Upon this _ 
principle it is clear that a custom of countries to destroy and 
plunder foreigners shipwrecked upon their shores must 
always, and under all circumstances, be an outrage upon the ' 
rights of Nations. So with respect to an usage of imprison- 
ing strangers who have innocently amved in time of peace, 
under a lawful flag, into a foreign port, on the ground that 
they are free men of that particular colour or complexion, 
which disquiets the slaveholder of the country, inasmuch 
as his slaves, being of the same colour and complexion, are, 
by the presence of the free strangers, reminded of the possi- 
bility of becoming free also ; so, if there existed in a country 
under the government of an autocrat a law or custom of 
imprisoning all strangers having peaceably arrived from a 
country under a republican form of government — any usage 
of this or the like kind, however inveterate, however sanc- 
tioned by Municipal Law, however accordant with national 
feeling, must always be a grievous violation of International 
Justice. Upon the same principle Grotius condemns the 
violation of women in time of war, as an undoubted breach 
of International Law among all Christian nations {q). In 


ip) Jm Omt, 

(j) The prohibition oven among heathen nations was, ho observes, 
“.Ins gentium, non omnium, sod meliorum;*’ but amongst^Cbristian 
nations, ho proclaims it as an undoubted principle : “ Atqne id inter 
Chridianos ohsorvari par cat, non tantum nt disciplime militaris partem 
sed et ut partem juris gentium — id est ut qui pudicitiam n lassit, qmiiu- 
vis in hollo, ubique poonic sit obnoxius." — Tab. iii, c. v. s. 2. 

“ Sod ot CJiridianis in univergum planiit bello inter ipos orto captos 
servos non fieri, ita ut vendi possunt, ad operas urgori, et alia pati qum 
servorum sunt, atque ita hoc saltern, quanquam oxiguum est, perfecit 
reverentia Chriduaiat — Lib. iii. c. vii. s. 0. 



28 


INI'EBNATIONAL LAW 


the same maimer aud for the same reasoii he denies that 
ca])tivcs can he lawfully made slaves, and either sold or 
condemned to the labour of slaves. 

XXXIII. This branch of the subject may be well con- 
cluded by the invocation of some high authoiities from the 
jurisprudence of all countries, in supiiort of the foregoing 
opinion. 

GrotinH says emphatically; “Ximirumhumana jura 
“ constituere possuut prairr naturam, contra nihil ” (r). 

John Fact s[)cal\s with great energy to the same effect ; 
“ (iuod si contra recta) rationis dictamcn gentes usn qua)dam 
“ iutroduxerint, non ca jus gentium rccte dixeris, seri pessi- 
“ mam potius morum humani generis corruptelam'^s). 

Snarez, who has discussed the philosophy of law in a 
chapter which contains the germ of most that has been 
ivritten upon the subject, says: “Leges autem ad jus 
“ gentium pertinentes vci’» leges sunt, ut explicatum 
“ manct, propiiK(uiorcs sunt legi naturali quam leges 
“civiles, idooque inqiossibilc est esse contraria.s a;quitati 
“ naturali ” (#). 

speaking of his own time, says: “Omnium fere 
“aniraos occupavit perversa ilia opinio, quasi Jons juris 
gentium sit ntiUtas propria: unde contingit, id potentiie 
“ coajquari. Bamnamus hoc in privatis, damnamus in 
“ rcctorc civitatis ; sed aque. idem damnandum est in gen- 
“ tibus ” (m). 

Muchhitosh nobly sums up this great argument: "The 
“ duties of men, of subjects, of princes, of lawgivers, of 
“ magistrates, and of States, are all parts of one consistent 
“ system of universal morality. Between the most abstract 
“ and elbmentary maxim of moral philosophy, and the most 
“complicated controversies of civil or public law, there 
“ subsists a connection. The principle of justice, deeply 


(r) J)e J. B. et 1*. lib. ii, c. vL s. 6. 

(«) Ckmment ud Band, de Just, et Jure, t. i. s. 19. 

(<) Tib. ii. c. XX. s. .‘5 : “ De Lege .diilterna et Naturali ac Jure Gentium.” 
(m) Jm Gent. s. lOiJ. 



S0UBCE8 OF INTEBNATIONAL LAW. 


29 


“rooted in the nature and interest of man, pervades the 
“ whole system, and is discoverable in every part of it, even 
“ to its minutest ramification in a legal formality, or in the 
“ construction of an article in a treaty ” {x). 


(.r) lyiscoursc m the Lato of JKatiire and Nations. 


30 


INTEUNATIONAL IjAW. 


CHAPTER IV. 

REASON OP THE THING. 

XXXIV. The next question whieh arises in the prose- 
cution of oiir inquiries into the sources of International 
Jurisprudence is tins — How are the principles of Natural 
or Revealed Law to be applied to States ? 

Though States are properly and by a necessary metaphor 
treated as moral persons, and as the subjects of those rights 
and duties wliich naturally spring from the mutual relations 
of individuals ; nevertheless it must be recollected that a 
State is actually a different thing from an individual person. 
Reason, therefore, which governs the application of common 
principles to diverse subjects, and demands, therefore, a dif- 
ferent application of principles intrinsically the siune («) to 
;thc State and to the Individual, may be regarded as a dis- 
tinct source of International Law. 

This application must be made justly, and in a manner (/>) 
suitable to this actual difference ; and in order to effect this, 
‘‘ the reason of the thing,” which has been already enume- 
rated as one of the sources of luteruational Law — ‘'neccssibvs 
“ finis quaj jus facit in moralibus ” (c)—raust in all cases be 
considered. 

Vattel, following and improving upon Wolff, expresses 
himself* upon this point with his usual clearness, and more 
than his usual force (rf). There are many cases, he observes, 

(rt) Vaitel, Preface, pp. 22, 2.‘J. 

ih) Kara Tf/v Wom/ici'ijv vXijv.—-Arist, Efh. lib. i, c. 3 ; IVotf, Jiie 
Gentium, Preef, 

(<?) Ornt. de J. B. et P, 1. ii. c. v. 24, B. 2, 

(J) Vaitel, ih, el Pr&im. s, 6, 



ROMAN LAW. 


31 


in which Natural Law cannot decide between nation and 
nation as it would between individual and individual. It is 
necessary to learn the mode of applying the law in a manner 
agreeable to the subject; and it is the art of doing this 
according to justice, founded on right reason, which makes 
International Law a particular science. It must, as Grotius 
says(«), be “recta illatio cx natuno principiis procedens” 
which guides the national conscience in its intcrnationiil 
duties. 

XXXV, The most strenuous — it might be said the most 
vehement — advocate for this source of International Juris- 
lu'udcnce is Bynkershoek. There is no dissertation of his 
upon any subject of International Jurisprudence Avhich 
docs not teem with references to it. “ Eatio ” and “ Usus ” 
arc, according to him, the two props which sustain the 
whole building; and “Recta ratio” is “Juris gentium 
magistra.” 

The tendency of this author, who ranks in the first class of 
jurists, is rather perhaps to undervalue the authority both of 
liis predecessors and of the tribunals of his own country. 
His opinion on this matter, however, construed by reference 
to the context, and subject to the qualification which it must 
receive from his frequent reliance upon precedents, and upon 
the opinions both of jurists and civilians, contains in reality 
nothing objectionable or inconsistent witli the doctrine of 
other writers (./') with respect to the international authority 
due to these precedents and these opinions. 

Bynkershoek was very far from meaning to convey the 
notion that whenever a question arose between nations, 
either of the contending parties was at liberty to solve it 
arbitrarily, according to its own notions of convenibuce or 
by an independent process of reasoning. On the contrary^, 
in every case of doubt, the reason which long usage hac^ 
sanctioned was to prevail; and the authorities of writer^ 
and of precedents were also recognised as leading to a| 


(«) Vt'd&j. a. 40. 


(/) Vatld, a. 6. 



32 


INTERNATIONAL LAW. 


just couclusion of Law. But he more especially recognized 
the fitness of one authority to direct and guide the Eeastm 
of States in the adjustment of their mutual relations ; that 
authority was the written reason of the Koman Law. 

His predecessors indeed, in every page of their writings, 
had assumed as unquestionable the homage due to this collec- 
tion of the maxims deducible from right reason and natural 
justice. None, however, have spoken more strongly with 
respect to it than Bynkershoek : “ Non quod in he says, 
“ qucB sola ratio commendat a jure Romano ad jus gentinm 
“ non tuta sit collectio ” {g\ 

And again: “Quamvis non de iwpuli Komani, sed dc 
“ gentium jurisprudentia agaraus, non abs re tamen crit dc 
“jure Romano quasdain prajnionuisse, cum qni id audit voeern 
**fere. omnium gentium videatur audire'^ (^h). 

Again : “ Abstine commodo si damnum metuis, ipsa juris 
“ gentinm, non sola Ulpiani vox est''{i). 

XXXVI. The Roman Law may in truth be said to be 
the most valuable of all aids to a correct and full knowledge 
of international junsprudcnce, of which it is indeed, histori- 
cally speaking, the actual basis ; and it has been remarked 
with equal force and elegance by an English civilian, “ that 
“ although whatever we read of in the text of the Civil Law 
“ was not intended by the Roman legislators to reach or 
“ direct beyond the bounds of the Roman empire, neither 
“ could they prescribe any law to other nations which were 

“ in no subjection to them Yet since (_/) there is 

“ such a strong stream of natural reason continually flowing 
“ in the channel of the Roman Laws, and that there is no 
“ affair or business known to any part of the world now 
“whiefi the Roman empire dealt not in before, and their 

(g) Omstimm Juris PuRid, I. i. c. iii. 

(A) I)e Furo Legttt, c. vi. 

(i) Queest, J, 1\ c, -viu. in fine. The passage cited from Uljnmi will 
■fae found 2%. lib. xvii. t. ii. b. 23. — Pro socio — “ abstine commodo quod 
per servum accesnt, bI damnum petb)." 

(ji) Alhericm GentUis^ 1, i. ; de Jure Bdli, c. i. 



ROMAN LAW. 


*33 


‘^justice still provided (A) for; what should hinder but that, 
“ the nature of affairs being the same, the same general rule 
** of justice, and dictates of reason, may be as fitly accom- 
“ modated to foreigners dealing with one another (as it is 
“clear they have been by the civilians of all ages), as to 
“ those of one and the same nation, when one common reason 
“ is a guide and a light to tlicm both ; for it is not the per- 
“ sons, but the case, and the reason therein, that is considcr- 
“ able altogether ” (/). 

In the case of the Maria (w). Lord Stowell expresses sur- 
prise that Vattel should mention a rule of International Law 
“ as a law merely modern, when it is remembered that it is a 
“ principle not only of the Civil Law (on which a great part 
“of the Law of Nations is founded), but of the private; 
“jurisprudence of most countries in Europe — that a coutu4 
“ macious refusal to submit to fair inquiry infers all thd 
“ penalties of convicted guilt.” 

XXXVII. Independently of the historical value of the 
Human Law as exjilanatory of the terms and sense of 
treaties, and of the language of jurists, its importance as a 
rejwsitory of decisions, the spirit of which almost always, 
and the letter of which very frequently, is applicable to the 
controversies of independent States, can scarcely be over- 
stated (?/). 


(Zf) Minim taiiu'ii ost Imiic novam prudeutiam, liomaiios^ a qiiibus 
aJ omues populos juris foiites purissiini maiiarunt, anU'a 

sf.‘rapev latuisso.” — Bod. do Bvp. 1 . v. c. vi. p. 

(/) WtHonwvn ExcrUonqf of the Civil 110; Burhe, 7r(>rZ:s, vol, 

viii. 1 S5 : Letters on a liotj. Veace. 

(m) 1 C, l\oK Adni. Bep. p. 

I am glad to find tliat the authority of Professor Jfanciui confirms 
the opiniou Avliicli 1 have expressed: — 

D’ultrfi parte, evocata la meiuovjA del veccliio imperio de’ Cesari, 
G 1‘itlesUto par opera dolle nostre TTnivorsita lo studio del Dritto romauo, 
I’antoriia di (piosto aiitico deposito della sapioiiza ilalica veune ri^ov- 
geiido da per lutlo, e lini (giovauiento iiiiincuso alia civilla avveuire I) 
per riguardarsi come uu dritto coiiuiiie ohhligatorio di tutte le uazioui 
civili.-’ — Delia Kitzioiuilita. Prelczime at corso di Dritto^ etc., Torino, 
1851 , p. 16 . 

VOL. 1. D 



34 * 


INTERNATIONAL LAW. 


From this rich treasury of the principles of universal juris- 
prudence, it will generally be found that the deficiencies of 
precedent usage, and express international authority, may be 
supplied. 

Throughout the greater portion of Chiistendom it presents 
to each State what may be fairly termed their own consent, 
bound up in the municii)al jurisprudence of their o^vn country; 
and this not merely to the nations of Europe, whose codes 
are built on the Civil Law, but to their numerous Colonies, 
and to the independent States which have sprung from those 
Colonies, and which cover the globe. 

And so we find that the Koman laiv was more than once 
referred to as an authority, upon the international question 
of the Free Navigation of Boundary Rivers, by the Presi- 
dent and diplomatic ministers of the United States of North 
America, in the discussion which took place between that 
Republic and the kingdom of Spain, as to the navigation of 
the Mississippi, in tlie year 1792. And to all nations, what- 
soever and wheresoever, this Law presents the unbiassed 
judgment of the calmest reason, tempered by equity, and 
rendered perfect, humanly speaking, by the most careful and 
patient industry that has ever been practically applied to 
the affairs of civilized man. 

It may be fairly said, that many International disputes in 
time of peace might be adjusted by this arbiter, assisted by 
the helps, and modified by the other sources which will 
presently be considered; certainly it may be most truly 
affirmed, that the greater number of controversies between 
nations would find a just solution in this compreheusive 
system of practical equity. Dixi saepius,” said Leibnitz, 

“ post scripta Gcometrarum nihil exstare quod vi ac subtili- 
“tate cum Romanorum scriptis comparari possit; tantum 

“ nervi inest, tantum profunditatis nec uspiam juris 

“ naturalis prsBclare exculti uberiora vestigia deprehendas ; 

*' et ubi ab eo recessum est, sive ob formularum ductus, sive 
“ ex majorum traditis, sive ob leges novas, ipsss consequen- 
“ tiae, ex nova hypothesi seternis rectss rationis dictaminibus 



ROMAN LAW. 


35 


“additsB, mirabili ingenio nec miuorc firmitate dcdu- 
« cuntur ” (o). 

So the English civilian before quoted observes (p)-. ‘'And, 
“moreover, by, as it were, a general consent of nations, 

“ there is an appealing to, and a resting in, the voice and 
“judgment of the Civil Law in these cases between nation 
“and nation. The reason whereof is, because any thing 
“ that is irrational, unnatural, absurd, partial, unjust, im- 
“ modest, ignoble, treacherous, or unfaithful, that law 
“ abhorreth ; and for that it is the most perfect image and 
“representation of nature, and of the equity and reason 
“nature prescribes to humane actions, that was ever yet 
“ jwesented or set forth to the world in a law'.” 

In the negotiations between the United States of North 
Amciica and Spain which have been already mentioned, 
the provisions of the Koraau Law were cited with respect 
to the public character of rivers, to the use of the shoi’es as 
incident to the use of the water, and to the occasional 
extension of this incidental right, when circumstances ren- 
dered it necessary that the cargo should be removed further 
inland, the shores being, for some reason, an unsafe place of 
deposit (y). 

XXXVIII. It is hardly necessary to guard against the 
supposition that what has been said applies to the technical 
and formal parts of the Roman Code, the “formularum 
“ ductus ” just mentioned, or to those which related exclu- 
sively to the particular policy of the empire ; but it should 
be remarked, that an error of this desenption tinged the 
eai’ly w'litings upon Intcrnationcil Law, and tended to bring 
the science itself into disrepute (r). It is the “ solida et 

(o) Op. iv. 264. 

0>) WvKHimis KvcMency of the CivU Law, p. 110; Burke, IFwATfjVol. 
viii., 186 : Letters on a Beg. Peace. 

iq) WheutmCs Hist. pp. 610, 611 ; jrailesi Amencan State Papers, 
X. 1.36-140; Insfit. 1. ii. t. i. ss. 1-6. 

(r) Grotius, de J. B, et P, 1. iii. c. ix. s. 1, 7)e Postiiminio : “ Ac- 
cuiatius lime res a veteiibus Itomauis traciata eat, sed sicpo confuse 
laniis, ita ut q^use juris gentium, qusoque civilis Romani esse vellent, 



36 


INTERNATIONAL LAW. 


" mascula ratio ” of Bynkershoek which must guide and 
enforce the application of it to the affairs of independent 
nations. 

Besides the actual compilations of Roman Law, the Com- 
mentaries upon them — for the like reason of their comprehen- 
siveness, impartiality, wisdom, and enlarged equity — are of 
great use and constant service in elucidating the rules of 
justice between nations. 

For instJince, every writer on the Law of Embassy relies 
for the elementary propositions relating to it upon the Com- 
mentary of Huber on the Civil Law ; and so Lord Stowell, 
in the case of the Twee Gebreeders, fortified his judgment as 
to the legal marks of territory, and the evidence by which it 
is to be supported, by reference to the opinions oH Famnamis, 
^Gail and Loccenius (.v). 

The decisions contained in the Roman Law may often 
form a safe guide even between nations in whose Municipal 
Code it has no root; in the interpretation, for example, 
of agreements, express or tacit, between Eui'opean and 
Asiatic nations, and in the equitable resolution of doubts 
and difficulties unforeseen and unprovided for by the letter of 
any compact (t). 


lector uequiret distinguere." . . . . iv. s. 3; “Sed hsec ratio Roma- 
uomm propria non potuit constituere jus gentium,” See, 

Hvimeemu, Pr(M(<ct. ad Ornlimn^ Vrmtnimn, s, 64, and in liis work 
Jm Nittum et Oentiunif Prtffatio, p. 14, shows how the “ Glossatorea ” 
erred in their application of portions of the Roman law to International 
quostionii. 

It will lie seen, when the subject of embassies is treated of, into 
how serious an eiTor the English civilians were led by applying the 
text of the lioman law respecting legati as the rule of International 
law upon the question of the privileges of the ambassador of Mary 
Queen of Scots. 

(«) 3 C. Rob. Adm. Rep. pp. 338, 348, 349. 

{t) The learned judges of the English Privy Council, in dedding 
questions arising out of the law and customs of Hindostan, have made 
reference to the analogies furnished by Roman law. — Sootragun SatpiUti/ 
v. Sttbilra Dye, 2 Knapifs Privy Council Reports — a case on the law of 
Hindoo adoption. 



KOMAN LAW. 


37 


XXXIX. Analogy (m) has great influence in the decision 
of International as well as of Municipal tribunals; that is to 
say) the application of the principle of a rulC) which has 
been adopted in certain former caseS) to govern others of a 
similar character as yet undetermined. Of course the justice 
and force of this application must chiefly dc|)end, in each 
casC) on the closeness of the parallel between the circum- 
stances of the precedents appealed to and those of the cases 
in dispute. 


(») By)ikershoek, de Foro Ley. c. iii. p. 4415. 

“ By the ancient law of Enrope, such a consequence (t. c. the condem- 
nation of the ship on account of a contraband cargo) would have en- 
sued; nor can it be said that such a penalty was unjust, or not kujv- 
ported by the general aiudogm of laio" — Lord Stowell, The Maida, ^ C. 
JRob. Adm . Rep. 90. 

“Is qui jurisdictioni prseest ad siniilia procedere et ita jus dicere 
debet.” — Dig, 1. i. t. iii. s. 12. 

“ Semper quasi hoc legibus inosse credi oportet, ut ad eas quoquo 
personas et ad eas res pertinerent, qu«e quaudoque sunilos orunt.” — 
Ih. 27. 

“De qtubus causis scriptis legibus non utimm', id custodiri oportet, 
quod moribus et consuetudino indnetum est : et si qua in in hoc defi- 
cerot, twK quod pro.nimm et comeqmm egt ." — lb. .‘52. 

“ Si quid in edicto positum non iuveniatur, hoc ad ejus regulas ejus- 
que coujectui'as et imitationes i) 0 s.sit nova instruoro auctoritas.” — Cod. 
1. 1. 1. xvii. 2, 18. 

Savigng, R. R. i. s. 4(5 ; Audegung der Geeelze-Amilogie. 

Rovnjer's Readings, p. 88 : “ Analogy is the instrument of the pro- 
gress and development of the Law.” See some good observations on the 
use of analogy in the English Law in the cases of Mirchouse v. Ren- 
ndl, 8 Bingham JZc/». 618; Bond v. Hopkins, 1 SeJioales and Lefroy 
Rep.m. 



38 


INTEBNATIONAL LAW. 


^,4 4* ^CHAPTER V. 

CONSENT OP NATIONS. 

XL. vThe next and only other source of International 
Law the consent of Nations. The obligations of Natural 
\aticl Revealed Law exist independently of consent of men or 
nations, and although the latter acknowledge no one superior 
upon earth, they, nevertheless, oavc obedience to the laws 
which they have agreed to prescribe to themselves, as the 
rules of their intercourse both in peace and war [a). 

How and where is this consent expressed? It is not 
indeed to be found in any one written code : but this may be 
the case with the Municipal or Common Law of any country, 
as it was till lately with the institutions of every European 
nation, and as it is now with those of Great Britain. 

XLI. This consent is expressed in two ways; — 1. It 
is openly expi’essed by being embodied in positive con- 
ventions or treaties. 2. It is tacitly expressed by long 
usage, practice, custom, — Jus moribus ct tacito pacto in- 
“troductum”(6), — according to Grotius; or, in the precise 


(ti) “ Quum ciiiui geutes nulla i-uporiuro in terris contineautni', sunt 
illis pro le^bus, qnas ip« silii dixere ; vel scriplis tabulis vel luoribua iu- 
troductis, qui sajpo acripturis istis comprobantur.’* — Leibnitz, Dmer- 
tnlio 11, “De actoriuu publicorum usu atquo do principiis jiu’is 
naturaj ot {'cntium,” t^c., s, i. p. 310. 

" Sed siciit cujusquo cidtatis jura utilitatein sure mitatis I’espiciunt, 
ita inter civitates aut oinnes, ant plenisque, ex consensu jura quredam 
nasci potucrunt, : et iiala apparent, qure utilitatein respicorent non coetiiuin 
linpuloj-um, sod majpire illias universitatis. Et hoc jus est quod jus 
(bntiuia dicitur, quoties id nomon a jure naturali distinffuimus . — Grott 
df. J. Jt, et, P, s. 17. 

(i) OrotU Proleff, s. 1, </c Jure B. et P. 



CUSTOM. 


39 


language of Bynkershockj ** Ipsum jus gentium, quod oritur e 
« pactis tacitis et praesumptis quae ratio et usus iuducunt” (e). 

XLII. Customs and usages which have long subsisted be- 
tween nations constitute alaw to them: “ Nec negamns,” says 
(jrotius, “mores vim pacti accipcre’’(rf). Each State has a 
right to count upon the presumption of their continuance : 
in no instance are they to be Hglitly departed from by any 
single nation ; never without due notice conveyed to other 
countries, and then only in those cases in which it may be 
competent to a nation so to act. 

For instance, a State may refnse — though it would be a 
defeasance of comity bordering upon hostility — to receive 
the resident Ambassador of another State ; but if it does 
receive him, it must accord to him the full privileges of his 
station : they are secured to him by the universal consent 
of all nations, which it is not competent to any individual 
nation at her pleasure to abrogate or deny. 

So in the case of the Lottis^ Lord Stowell reversed the 
sentence of a Yicc-Admiralty Court, which had condemned 
a French ship for being employed in the slave trade, and 
resisting the search of a British cruiser, saying, “that 
“ neither a British Act of Parliament, nor any Commission 
“ founded on it, can affect any right or interest of foreigners, 
“ unless they are founded upon principles, and impose regular 


(f) Qumiiones Juris ruhlm, 1. iii. c. x. Again lift says, “Ut in 
onini arguiiiento, quod do jure gentium est, ratio et usus faciiint utrain- 
que paginam/’ — Ib. c. v. 

(d) Lilj. ii. c. V. s. 24, p, 259. It is my duty not to iidmit that, 
because one nation has thought proper to depart from the common 
usage of the world, and to meet the notice of mankind in a new and 
unprecedented manner, I am, on that account, under tho necessity of 
acknowledging the ollicacy of such a novel institution, merely because 
general theoiy might give it a degree of countenance, independent of 
all practice, from tho earliest history of mankind .'’ — The Find 1 C, 

Kdb. Adm, Itqh pp. 139-140. See, too, Vtdiel, ii. 1. iv. c. vii. s. 106. 

Bynkershoek, de Foro Lvyatonmi^ c. v. ud Jin.^ speaking of the attempt 
to subject a foreign prince to a municipal tribunal by seizing some 
trifling property of his as it passed through the kingdom, says, Nec 
quicquam magis erit contra prmumtam si non testaiam mvntem yentinm,^^ 



40 


INTERNATIONAL LAW. 


“ tions that are consistent with the Law of Nations. That 
“ is the only Law which Great Britain can apply to them ; 

“ and the generality of any terms employed in an Act of 
Parliament must he narrowed in construction by a religious 
“ adherence thereto ” («). 

The force of International Custom is emphatically ex- 
pressed by Crotius in the phrase often repeated by him, 
“ Placuit gentibus ” (/) ; and still more in the phiuse, 
“ Christianis in universum plaeuit " (g) . Bynkerahoek speaks 
of “ilia ])crpetuo usu inter diversos sui juris populos 
“observata consuetudo,” and repeatedly of the “gentium 
“ usns ” as one of the two pillars of International Law. 

Prince Talleyrand, in his note (19th December, 1814) to 
the Congress of Vienna, expostulated upon the violation 
of Inteniational Law contained in the arrang(Mncnts which 
sanctioned the fresh partition of Poland, and the annexation 
of parts of Saxony to Prussia. He said that such arrange- 
ments would lend to establish the principle “that the 
“ nations of Europe are united to each other by no other moral 
“ ties than those which unite them to the islanders of the 
“ Pacific; that they live among each other under the pure law 
“ of nature, and that what is called the Ibiblic Law of Europe 
“does not exist; since although all the civil societies of the 
“ earth arc, wholly or partially, governed by usages which 
“ constitute laws, the customs which arc established between 
“ the nations of Europe, and which they have universally, 
“ constantly, and reciprocally observeil for three centuries, 
“ do not form a law for them ; in one wonl, that there is no 
“ other law but that of force ” (A). 

(p) 2 Dothan Advi, Ittp. p. 239. 

(/) De J. P. el 1\ 1. ii. c. xviii. 4, s. 5; 1. iii, c. ri. 3 ; c. vii. 6, s. 2. 

ig) Lib. hi. c. vii. 9, fl. 1. “Hoc salteui . . . perfecit roverentia 
(Jhvistiaiia) Ifijns.” — D>. 

As to presorvin'^ women from violence: “Atiiue id inter (Mristiauos 
observari par cst,non tauium xit disciplinsa Tnilitoris partem, ged iif- 
jHtrlem jurh gmfmm .'' — lib. iii. c. v. xix. s. 2 ; cf. The Find Oi/m, 1 C. 
Itob. Adtii, Sej). 141 {Lord S(oivell). 

(A) Whenlon's lligtary of the. Law of Nations, p. 429. 

Kliihcr, Aden deg Wiener Cmigrems, Band vii. s. 48. 



CUSTOM. 


41 


XLIII. Lord Stowell frequently expressed his entire 
(jonourrence with the opinions of preceding jurists as to 
the great and inestimable influence of Custom upon the 
Bights and Duties of Nations. Speaking of the condemna- 
tion of a ship in a neutral country, he says : “ It has been 
“ contended that such a sentence is perfectly legal, both on 
“ piinciplc and authority. It is said that, on principle, the 
“ security and consummation of the capture is as complete in 
“a neutral port as in tlie port of the belligerent himself. On 
« the mere principle of security it may perhaps be so ; but 
“ it is to be remembered that this is a matter not to be 
governed by abstract pi'inciples alone; use practice 
“ of nations have intervened, and shifted the matter from its 
“foundations of that species: the expression which Gi-otius 
** uses on these occasions (placuit gentibus) is, in my opinion, 
“perfectly correct, intimating that there is a use and practice 
of nations, to which we are now expected to conform ” (i). 
lu another case(^'), he says: “ This is a position in which 
“ I am justified by the general practice of mankind, and the 
“ practice of mankind forms one great branch of the law of 
nations.” Throughout his celebrated judgment in The 
Maria (/t) he relies invariably upon “ the law and practice of 
“ nations.” And again, in The Santa Cruz, after having ob- 
served that there is no statute of the British Parliament upon 
the subject of Prize which directly applies to recapture, he 
continues : “ But there is a laic of habit, a law;f^ usage, a 
“ standing and knoton principle, on the subject in all civilized 
“ and commercial countries : it is the common practice of 
“ European States in every war to issue proclamations and 
“ edicts on the subject of Prize ; but till they appear. Courts 
“ of Admiralty have a law and a usage on which they 
proceed, from habit and ancient practice, as regularly as 


(i) The EmricTi and Maria, 4 C. Jtob, Ailm. Rtp. pp. 64, 65. 

O The Jhrogress, 7 C. Hob- Adm. Rep. p. 220. 

(h) 1 C. Rob. Adm. Rep. pp. 360, 302, &c. See too 7^ Mad Open, 
Ib. 140, 141. 



42 


INTERNATIONAL LAW. 


‘‘ they afterwards conform to the express regulations of their 
Prize Acts” (/). 

Similar expressions abound in the luminous expositions of 
International Law which these judgments afford. 

XLI V. The Law of Nations has received continual acces- 
sions and improvements since the 6rst cultivation of it in the 
Christian world ; not only have evil customs been abrogated, 
but the rigour of many ancient customs has been softened and 
relaxed in their application, without any departure from the 
princiide on which they were founded. This effect is happily 
described by Lord Stowell ; when speaking of contraband 
articles found on board a neutral vessel, he says, I do not 
“know that under the present practice of the Law of 
“ Nations a contraband cargo can affect the ship. By the 
ancient law of Europe, such a consequence would have 
“ ensued ; nor can it be said that such a penalty was unjust, 
“ or not supported by the general analogies of law, for the 
“ owner of the ship has engaged it in an unlawful commerce. 

“ But in the modern practice of the Courts of Admiralty 
“ of this country, and 1 believe of other nations also, a 
milder rule has been adopted^’ (m). On the other hand, 
usage has decided that many things are contraband in naval 
war concerning which there had formerly been much dis- 
pute. V alin says, honestly and boldly, in his Commentaries, 
“De droit ces choses sont de contrabande aujourd’hui et 
“ depuis le commencement de ce siecle, ce qui n'etait pas 
“ autrefois n6anmoins ” (n). There must be, however, a 
reciprocity {o) in the conduct of the nation demanding from 
another nation the privilege of these mitigations introduced 
by usage into the ancient Law ; and a nation may be estopped 

(/) 1 C. Rob. Aim, Rep, p. 61. 

The Mermrius, 1 C. R<i>. Aim. .Rep, p. 82 : “ Under the modem law of 
nations.” The Maria, lb. 371 a: According* to the modem under> 
standing of the law of nations.” 

The Satia CVuz, 1 C. Rub, Aim, Rep. p. 66 ; The Eltdbe, 4 Ib, p. 421. 
(»i) The Rinpende Jacob, 1 C. Rob. Aim. Rep, p. 90. 

(«) Ordoimance de la Marine, 1. in. t. ix. art. xi. 

(o) The. Santa Crtiz, 1 C. Rob. Aim. Rep, pp. 49, 64. 



CUSTOM. 


43 


by its usage from claiming the benefit of a principle of the 
Law of Nations which would operate in its favour. 

XLV. Such is the influence of univei’sal usage, that it 
will ill some measure affect even the stipulations of a treaty 
made long prior to the commencement of that usage, and at 
a time when the law, which has been since settled, was in a 
state of fluctuation and controversy (p). 

In 1654, a treaty was entered into between England 
and Portugal, by which, among other things, both countries 
mutually bound themselves not to suffer the ships and goods 
of the other taken by enemies, and carried into the ports of 
the other, to be conveyed away from the original owners or 
proprietors. “ Now, I have no scruple in saying ” (observes 
Lord Stowcll, in 1798), “that this is an Article incapable of 
“ being carried into literal execution, according to the modern 
“ understanding of the Law of ‘ Nations, for no neutral 
“ country can interpose to wrest from a belligerent prizes 
“lawfully taken” (</). This is, perhaps, the strongest 
instance that could be cited, of what civilians call the 
“ consuetudo obrayatoria ” (r). 

XLVI. So the establishment of Courts of the Law of 
Nations in all civilized countries in time of war, is an insti- 
tution introduced by civilized us.age, and binding upon all 
civilized countries. 

Neutral Nations in time of War have now no right («), 
when they are injured, to exact compensation from the 
countrymen of the aggressors (t), though the Barbary States 
were said by Lord Stowell to do so, “ under a Law of Nations 


{p) Thfi Mariaf 1 C. Hob. Adm. Itqh pp. 371-373. 

(y) The Santa Cruz, 1 C. Hob. Adm. Hep. pp. 49, 04. See also vol. ii. 
p. 732, of Sir Leoline Jmkim'B Works. 

(r) Savipiy, System dee Rbmischen Hechts, 1). i. 196. 

Byukershoek, do Foro Leyat. c. xix. s. 7. 

(«) Bynkershoek, Observationee Juris Hommii^ c. ii* vol, ii, : PropiU- 
satio vis atquo injurise quo seiisu juri gentium tribiiatur,” 

(^) The Maria, 1 C. Hob. Adm. Hep. p. 373; The Wcdmgham Backet^ 
Ib. p. 83 ; The l^ipe and othei^s, Edwardd Adm. Rep. p. 412. 



44 


1MT£KNAT10NAL LAW. 


“now peculiar to themselves” (m). Neither in time of 
Peace arc Nations entitled to have recourse to Reprisals, 
until reparation for the injury sustained has been formally 
asked and denied, both of the proper tribunal, and of the 
government, in re minime duhia. 

These points, however, Avill receive a fuller discussion in 
another part of this work. 

(m) The Kinder Kinder, 3 Cl Hoi. Adm, Mep, p. 88. 



HISTORY — TREATIES. 


45 


CHAPTEE VI. 

HISTORY— TREATIES. 

XL VII. Such being the influence of usage upon Inter- 
national Lavr (a), it becomes of importance to ascertain where 
the repositories, and what the evidence, may be of this great 
source of International Law. 

XL VIII. (1.) In the enumeration of these. History, unless 
the term be too general, necessarily takes the first place. It 
supplies, according to Grotius, both example and authorita- 
tive judgments — of which the latter owe their weight to the 
general acceptance which they have obtained, whilst the 
former are more or less valuable according as they are more 
or less derived from epochs and nations more or less entitled 
to universal respect (A). 

It is scarcely necessary to guard against the error which 


(а) ** Quamquaiu eniin nec sit exemplis judicandum, et aurea ea 
dicitur Justimani lex, ab exemplis tameu duci probabilom conjecturam 
cortom est, et in dubio judicandum iiuo e^t exemplis ; et cum itiim in 
consuetudineiu est. Neque eniiu mntare decet quae certam observan- 
tiam semper babuerunt, et llrmius judicium creditur, quod plurimormu 
sententiis confirmatur.” — Alherkua Gvntilis, lib. i. c. ii. De Jure Belli. 

(б) “ Ifistory,” Ilume observes, “ the great mistress of wisdom, furnishes 
examples of Muds ; and every prudential as well as moral precept 
may be authorised by tliuse events which her enlarged miri'or is able 
to present to us .” — of Englmid, vol. vii. p. 150. Grot. Proleg. s. 
xlvi. : Historim duplicem habent nsum, qui nosiri sit aigumenti : uam 
et exempla suppeditant et judicia. Exerapla, quo meliorum sunt tem- 
porum ac populorum, eo plus habent auctoritatis ; ideo Gneca et llomaua 
Vetera emteris jusotulimus. Nec spernenda judicia, pnesertim consen- 
tientia ; jus enim naturae, ut diximus, aliquo modo inde probatqr ; jus 
veTO ||«atium non est ut aliter probetur.” 

7% Flad Oyen, 1 C, Sob, Adnu Sep, p, 141. 



46 


INTERNATIONAL LAW, 


Grotius, in another part of his work, denounces — that in- 
stances recorded in History, merely by virtue of being so 
recorded, constitute precedents of International Law (c). 

History is a record of the injustice, evil passions, and folly, 
as well as of the justice, virtues, and wisdom of Nations. 

The necessities of the epoch in which Grotius wrote left him 
little or no choice in selecting Ms examples and precedents 
chiefly from the antiquity of Greece and Rome. This is not 
the case with his successors ; they have far ampler and far 
apter materials. But the edifice is not the weaker for the 
breadth and depth of the classical foundations laid by the 
first architect ; and the principle which guided him is in 
this, as in most other instances, most valuable to the later 
and, in spite of their advantages, inferior builders. 

XLIX. (2.) Secondly, the consent of Nations is evidenced 
by the contents of Treaties, which for this, as well as for other 
reasons, constitute a most important part of International 
Law (d). 

L. Upon this point there is one observation which merits, 
from its importance, precedence over all others. It is this : 
No treaty between two or more Nations can affect tlie 
general principles of International Law prejudicially to 
the interest of other Nations not parties to such covenant; 
at the same time, the contracting jtarties (e) may introduce 

(c) “ Solet et illud^quasri, an jure talionis interfici, aut male tractari 
legatm posat ab eo veniens, qui tale quid patravorit. Et simt quidem 
ultionis tails exempla in bistoriis satis raulta: sed niinirum historice 
non tantom qua) juste, sod et quse iniqne, irocunde, iinpotenter fecta 
sunt, memorant.’'— ftru/. 1. ii. c. xviii. 7. 

(d) “ All this body of old conventions, compoang the vast and volu- 
minous collection called the Co/y>» diplotTuUique, forms the code or statute 
hiw, as the methodized reasonings of the great publicists and jurists 
form the digest and jurisprudence of the Christian world. In these trea- 
mires are to be found the mwd relations of peace and amity in civilized 

LeUers ow « Reffictde Peacoy Bvrke, Worksy vol. ix. p. 235. 

(<•) tJsus intelligitur ex perpetna, quodam niodo, paciscendi edicen- 
^ue consuetudine; pactis enim principes siepe id egerunt in casum 
belli, Bsepe ^om odictis contra quoscunque, flagrante hello. Kxi, ex 
perpetm quodam mode consuetudine, quia unum forte alterumve pactum, 



TREATIES. 


47 


into a treaty expressions so generally worded as to be 
either explanatory of a previously contested ijoint of law, or 
declaratory of the future interpretation of it, or in other 
ways frame the covenants of the Treaty between themselves 
so as to lay down an universal principle binding on them, at 
least, in their intercourse with the rest of the world. Nowhere 
will this important doctrine be found laid down with greater 
precision, or more irresistible argument, than in Lord Gren- 
ville’s speech in the House of Peers, upon the motion for an 
address to the throne approving of the convention with Russia 
in 1801 (/). Among the many attributes of a statesman 
possessed in rare excellence by that minister, was his inti- 
mate acquaintance mth International Jurisprudence in all 
its branches. His opinion is, therefore, of very great autho- 
rity. He argued that, by the language of that convention, 
a new sense, and one hitherto repudiated by Great Britain, 
with respect to contraband of war, would bo introduced, so 
far at least as Great Britain was concerned, into general 
International Law; that inasmuch as some provisions of 
the Treaty with respect to what should be considered contra- 
band of war were merely prospective, and confined to the 
contracting parties, England and Russia, while other provi- 
sions of the same Treaty were so couched in the preamble, 
the body, and certain sections which contained them, as to 
set forth, not the concession of a special privilege to be 
enjoyed by the contracting parties otdg, but o recognition of 
one universal pre-existing right, they must be taken as laying 
down a general rule for all future discussion with any Power 
whatever, and as establishing a principle of law which was to 
decide universally on the just interpretation of the technical 
term contraband of war. 

quod a consiietiidine recedit, jus f^ntium non mutat.” — JBynkershoek, 
QiUsUiones Juris Pabtid, 1. i. c. x. 

Wheaton's M. oflnt. Law, i. 60. 

(/) Tbis speech was paUished separately, Cobbett and Morgan, 
Pail Mall, November 16, 1802. 

See, too, Hansard’s Parliamentary Debates, 1801. 



48 


INTEUNATIONAL LAW. 


LI. The constant consent of various nations % adopt a 
particular interpjretation of a particular term is, generally 
speaking, strong evidence that such is the true International 
meaning belonging to it. Bynkcrshock was in the habit of 
placing great stress upon the language of Treaties, as evi- 
dence of the universal consent of nations, and especially on 
this point {g ) : “ Excute pacta gentium, quas diximus, excute 
** et alia, quse alibi exstant, et repcries, omnia ilia appellari 
** contrabanda, qua), uti hostibus suggeruntur, bellis gerendis 
** inserviunt, sivc iustrumcnta bellica sint, sive materia, per 
" se bello apta ; ” and, again, “ Priusquam autem, quid mihi 
“ videatur, exponam, operas pretium erit, pactiones gentium 
“ consuluisse ; ” again, “ Sed his paulisper sepositis uudi 
“ pacta gentium ; ” — these and the like expressions abound in 
his most valuable dissertations. Nor in this respect is he at 
variance with other jurists ; it is their universal opinion that 
not only the particular jsrovisions, but the general spirit, of 
Treaties to which at different periods many nations have 
been parties, is of great moment and account as the evidence 
of their consent to the doctrine contained in them. So Lord 
Stowell, in his judgment in The Maria, arguing for the uni- 
versal right of the belligerent to visit neutral merchant ships, 
says ; The right is equally clear in practice, for practice 
“is uniform and universal upon the subject: the many 
“ European Treaties which refer to tliis right refer to it as 
“ pre-existing, and merely regulate the exercise of it” (A). 

So the “reponse sans repligue," already mentioned, of 
Great Britain to the Prussian memorial, and that memorial 
itself, refer to a variety of Treaties as containing provisions 
illustrative and confirmatory of the doctrine maintained in 
the reply. 

LII. When, however, it is said that the eonsent of nations 
may be gathered in some degree from the conventions of 
Treaties, it is not meant that every kind of Treaty can 

iff) Quaaimes Juris PuMiei, L i. c. x. 113. 

(4) 1 C. Sob. Adm, Sep. p. 860. 



TREATfES. 


49 


furnish evto this degree of evidence. Many are concerned 
with matters of no general {i) interest to other than the 
contracting parties ; many contain stipulations wrung from 
the necessities of one party, compelled to admit claims to 
which by the general law its adversary was not entitled ( j). 
From Treaties of this description no argument of the consent 
of Nations can be fairly deduced. But there are certain 
great and cardinal Treaties in which, after long and bloody 
wars, a re-adjustment of International relations has taken 
place, and which are therefore more especially valuable, 
both from the magnitude and importance of their provisions, 
which have necessitated a recurrence to, and a re-statement 
of, the fundamental prinmples of International Law ; and 
also from the fact, that frequently the greater number of 
European States, and lately some American and even Asiatic 
communities, have been parties thereto (A). 

This subject will come again under discussion in a subse> 
queut consideration of the general subject of Treaties (Z). 
It may, how'cver, be as well to mention in this place that the 


(() *'fiy tbia lueana the proposed fiatemity is bnstlod in the crowd 
of those treaties which imply no change in the public law of Europe, 
and which do not, upon system, afiect the interior condition of nations. 
It is confounded with those conventions in which matters of disputo 
among sovereign powers are Ciunpromised, by the taking oif a duty 
more or less, by the surrender of a frontier town or a disputed district 
on the one side or the other, by pactions in which the pretensions of 
families are settled (os by a conveyancer making family sul^stitutions 
and successions), without any alterations in the laws, manners, religion, 
privileges, and customs of the cities or territories which are tlie subject 
of such arrangements.” — JJvrJce, Works, vol. viii. p. 234 ; Letters on a 
Ttejftcide Peace. 

(J) “ Quod vero contra rationem juris receptnm cst, non est ptodu- 
cendum ad consequentias.”— i. iii. s. 14 (2>s Leyibtis). 

“ Qum propter necessitatem recepta sunt, non debent in argumentum 
train,” — 1. xvii. 162: JDe IHversis Begnlis Juris Antiqui. 

(k) Tousles princes et dtatsdel’Eiu'ope se trouvenl ainsi directement 
on indirecteinent compris dans ce traitd, k I’excepliou du Pa|)e et du 
Grand Seigneur, qui souls u’y prirent aucune part.” — Koch, lUst. des Tr, 
e.i,l,3,mjlne. 

(0 Vol. ii. ch. vi. vii. vui. 

VOL. I, E 



50 


INTERNATIONAL LAAV. 


Treaties which have principally affected International Law, 
are(m): — 

For Europe generally: — Westphalia (1648), to which 
every Sovereign and State on the Continent of Europe, 
except the Pope and the Grand Seigneur, was a party; 
Utrecht (1713); Paris and Hubertsbourg (1763); Paris 
(1814), and the Congress of Vienna. 

A group of Treaties negotiated for the North of Europe 
only : — Oliva (1 660); Kiel (1814), with the Ottoman Porte; 
CarloAvitz (1699) ; Bucharest (1812). 

The Treaties which have affected the relations between the 
Ottoman Porte and the European Powers generally : — 

The Act of the Porte granting to British merchant vessels 
the privileges of commerce in the Black Sea (October 30, 
1799). 

The Convention concluded between the Courts of Great 
Britain, Austria, Prussia, and Russia, and the Sublime 


(?«) “ Si I’on examino Ics rdvoluliona qui out contribud i constituer 
I’dtat actuel de rEurope, on se conraiueia qu’il y a pou de tmitds antd- 
rieurs k cenx do Westphalio, d'Oliva, et do Oarlowitz, dont I’iniluencc 
sutende aux affaires gdndralos, et au systdme politique de nos jours. 
L’dtudo dcs traitds qui les prdcMcut ne Itusse cependant pus d’avoir son 
utilite, parce que les stipulations qu’ils renfonnent sont sonvent rappldos 
et confirmdes dans des actea plus rdeeuts ; que les pi'dtentious des puis- 
sances ddrivent en grande partie des oncioiis traitds, et qu’enlin la con- 
nrissance de ceux-ci sert & dtoudre los vuos dc la politique ; car plus on 
pdndtre dans I’lnstoire des traitds, plus on se rend propre aux ndgociations 
et aux travaux diplomatiques. 

11 serait superflu d’entrer dans un plus grand ddtail sur les avantages 
que procure la connfussance des traitds; il suflit dc rematquer qu'elle 
(lonne celle de I’dtat actuel de I'Europe, ainsi que des droits et deS obli- 
gations rdciproqnes des puissances. Elle est done indispensable & tons 
ceux qui sont charges du maniement des affidres publiques ou qui veulent 
s’y former. Elle n'est pas d’une luoiudre utilitd & ceux qui dtudient 
liiistoiro en pfailosopbes et en politiques. 

En suivant le fil des ndgociatious, on ddeouvre Torigine des drdue- 
ments qui ont ebangd la face dii monde politique et produit I’dtat de 
choses qui r^e aujnurd’hui en Europe. Cette dtude conduit done a la 
Traie connaissance de I’histoirc, et nous met en dtat de relever beaucoup 
d’erreurs commises par les bistoriens qui ont ndgligd d’approfondir les 
traitds.” — Koeh, Hist., des Tr, Fr6f. 



TREATIES. 


51 


Ottoman Porte, for the Pacification of the Levant, signed 
at London, July 15, 1840. 

The Treaty of July 13, 1841, as to the Navigation ot 
the Dardanelles and the Bosphorus, which incorporated into 
the written Law of Nations the conventional maxim as to 
territorial jurisdiction over adjacent waters, revised and 
altered by Treaty of Paris (already mentioned), 1856. 

The Treaty of Paris (with the Conventions annexed to 
it), March 30, 1856, between England, Austria, France, 
Prussia, Russia, Sardinia, and the Porte, by which the in- 
dependence and integrity of the Ottoman Empire are secured, 
and this Empire is admitted “into the Public Law and 
“ System of Europe.” 

The Declaration respecting Maritime Law was signed by 
the Plenipotentiaries of Great Britain, Austria, France, 
Prussia, Russia, Sardinia, and Tiu*key, assembled in Con- 
gress at Paris, April 16, 1856. 

The Treaty of Prague, 1866, was made at the close of 
the war by wliich Prussia destroyed the old German Bund, 
obtained for herself the supremacy which Austria once had 
in Germany, and seized without scruple or justification large 
portions of her weaker neighbours’ temtorics — a fate which 
even the ancient Free City of Frankfort could not escape (?t). 


(n.) See Overfhrmo of tite Germanic Confederation in 1866, by Sir A. 
Malet, 1870, Tlio ancient free city of Frankfort, he says, “ obtained, 
by special favour of the King of Prussia, reimbursement of a portion of 
the contribution which was exacted ; but the Goveninient is abolished, 
and the city is reduced to a I’russian town of the third rank.”— C/wp. 
XXV. p. 384. 

Article JV. of tlxe Treaty of Ih-ayue. — “ His Majesty the Emperor of 
Aristria recognizee the dissolution of the late German Bund, and gives 
his consent to a new formation of Germany, in which the Luperiol State 
of Austria shall take no part. Moreover, his Majesty promises to recog- 
nize the doner Federal relations which Ids Majesty the King of Prussia 
is about to establish nortii of the lino of the Maine, and also agrees that 
the German States to the south of tliis line shall form on nnion, the 
national connection of which with the northern confederacy is reserved 
for a more definite agreement between both parties, and which is to 
maintain on international independent existence.” 



52 


INTEBNATIONAIi LAW. 


The Treaty which established the Kingdom of Greece 
(1832) ; and that which established the Kingdom of Belgium 
(1831), the provisions of which were afterwards superseded 
by the Treaty of April 19, 1839. 

The amalgamation of the various Italian States into the 
Kingdom of Italy is not recorded in any Treaty or Treaties. 

The union of Lombardy with Piedmont is recorded in the 
Treaty or Treaties of Zurich (November 11, 1859), between 
Austria, France, and Sardinia. Austria adopted the course 
with respect to Lombardy (o) which she afterwards pursued 
with respect to Venetia — namely, that of ceding the temtory 
to France, Mdio transferred it to Sardinia. Events, subse- 
quently to the Treaties of Zurich, led to the formation of 
the present Italian Kingdom, which has been recognized by 
all Powers but the Pope. 

The Principal Treaties between the United States of 
North America and the European Powers are — 

The Treaty of Versailles (1783), containing the recogni- 
tion of that Bepublic. 

The Treaty of Ghent (December, 1814), between Great 
Britain and the United States, chiedy as to boundaries of 
their respective dominions in North America. 

The Treaty of the United States of North America Avith 
the Confederation of Central America (December 4, 1845), 
should also be mentioned. 

The international position of the Bepublics of Honduras 
and Nicaragua, in Central America, was materially affected 
by the claims of Great Britain to the Protectorate of the 
Mosquito ten'itory. The Treaty called the Clayton-Bulwer 
Treaty, and the subsequent explanatory Dallas-Clarendon 
Treaty, which the United States’ Senate refused to ratify, 
failed to remove the dispute between Great Britain and 
the United States of North America relative to these 
Republics. But by a Treaty between Great Britain and 
Honduras, November 28, 1859, and with Nicaragua, August 


(o) Am. Iteg, 1869, p. 264. 



TREATIES 


53 


28, 1860, relinquishing the Mosquito Protectorate, these 
troublesome questions were finally set at rest(/7). 

The Treaty bot\veen Russia and Persia, signed at Sei’wa 
(1813), and confirmed at Tiflis, under the mediation of Great 
Britain, in which Persia recognized the exclusive right of 
Russia to have ships of war in the Caspian Sea. 

The Treaty between Great Britain and Persia, signed at 
Tehran, November 25, 1814, followed by the royal order 
of the Shah relative to the trade of British subjects in 
Persia (y). 

LIII. These Treaties furnish one of the many reasons why 
the science of International Law has made such progress 
since the Treaty of Westphalia, which is usually considered 
as the first great adjustment of International Relations on 
the Continent of Europe. It is, then, a sound maxim that a 
principle of International Law acquires additional force from 
having been solemnly acknowledged as such in the provisions 
of a Public Treaty. 

LI V. How far a provision of a Treaty may be affected by 
its omission in a subsequent Treaty between the same Powers 
is a question of much gravity. When the independence of 
the United States of North America was acknowledged, the 
right of navigating the Mississippi was secured to the sub- 
jects of Great Britain as well as those of the United States 
by a Treaty (1783) between these two Powders: but in the 
Treaty of Ghent (1814), which put an end to the Avar 
between these PoAvers AA^hich had broken out in 1812, the 
stipulation of 1783 in favour of British subjects AA'as not 
renewed, and it has been contended by the United States that 
the right belongs exclusively to their own subjects (r). 


0») They were constantly referred to in the speeches of Presidents of 
the United States. See Ann. Reguter for 1857, p. 346 ; for 1.868, p. 283 j 
for 1869, p. 274 ; for 1880, p. 284. 

(?) In vol. ii, pt. viii. the International gtaim of foreign Spiritual 
Powers, especially the Pope, is considered, and the History of Concordats, 
or treaties between such Powers and the State. 

(r) meaton'g Hist. 607, 608, 686. 



54 


INTERNATIONAL LAW, 


When a Treaty, dealing with certain subjects, is silent as 
to others naturally connected with them, or leaves them on 
an indefinite and disputable footing, questions afterwards 
arising upon subjects of this latter class will then be decided 
according to the subsequent judgment and practice of nations, 
which must be looked to for exposition of these subjects ; 
and when in a Treaty an enumeration is made of particular 
articles, or particular matters, according to the nature of the 
Treaty, this is held to be done in order to prevent misunder> 
standing, and not to warrant the inference, that the articles 
or matters excepted from the enumeration should be consi- 
dered as tacitly sanctioned thereby: the rule ‘‘Exceptio 
“ confirmat regulam ” is not applicable to cases of this 
description («). 

LV. The consent of Nations is also evidenced by the 
Proclamations or Manifestoes (<) issued by the Governments 
of States to the subjects of them upon the breaking out of 
war. These frequently contain, not only expositions of the 
causes which have led to this result, but also a defence of the 
conduct of the Government, founded upon a reference to 
the principles of International Laiv, in declaring an offensive 
or undertaking a defensive war. 

These public documents furnish, at all events, decisive 
evidence («) against any State which afterwards departs from 
the principles which it has thus deliberately and solemnly 
invoked ; and in every case they clearly recognize the/aef, 
that a system of law exists which ought to regulate and 
control the International relations of every State. 

LYI. The Marine Ordinances or regulations of a State 

(«) JTte lUngende Jacob, 1 C,'Jtob, Adm. Rep. p. 92 (Lord Stmodl). 

(t) The Santa Cruz, 1 C. Sob. Adm. Sejh 61. 

(u) The remarks which i^schines so forcibly otges as to the advantage 
of public records, and the testimony they bear to the character of public 
men, is equally applicable to States: Kakbv, & Spipes ’AAjmtoi, Kobbv 
f) Twv bripoaiav ypappartuv (pvXoKg' oKivip-op yap rort ml ov mippvrairlnTet 
Tois abropoKavmp tv rg iroXirrt^, dXX’ (irtbuKf bfip.tf, Snorcai ^ovbijfrai, 
crvvibtlv Totis wdXm piv vovifpabs, ck peraBoKijs ^ d^iovirrot clwu Xjptpmvs. 
— jEscMn. Grot, adv, Ctegipb. s. 75. 



TREATIES. 


65 


afford valuable testimony, first, as to the practice of the 
State itself upon this branch of International Law; and 
also, in some degree, as to the usage of Nations as gene- 
rally recognized at that time by the jurists and statesmen, 
and legislative assemblies of the country which issued 
them (;r). 

When the institutes of great maritime countries agree 
upon a question of International Maritime Law, they consti- 
tute a tribunal from which there can rarely, if ever, be any 
appeal. 

Certain of these institutes, independently of their agree- 
ment or disagreement with other maritime codes, have 
always been held in the highest respect ; and certainly no 
English writer or judge can be accused of national partiality 
for relying upon them {y). These arc the celebrated “ Con- 
“ solato del Marc,” with the commentary of Casaregis, and the 
French Ordminance snr (a Marine of 1681, with the com- 
mentary of Valin ; and, due regard being had to the modem 
practice, the Collection des Lois maritimes anterieures au 
“ XVIir Steele/' by Pardessus. 

LVII. The consent of Nations is also evidenced by the 
decisions of Prize Courts, and of the tribunals of Interna- 
tional Law sitting in each country. 

It has been already observed, that in time of war, neutral 
States have a right to demand ex debito justitice (z) that 


(.r) Wheaton states the proposition in a less limited shape. — Elementn 
of Intern. Law, p. 101. 

See The Maria, 1 C. Eob. Adm, Rep. passim, especially p. 368 ; The 
Hoop, 1 C. Rob. Adm. Ibp. pp. 198, 199. 

(ff) The Maria, fmssini. 

Oppenheim, Si/stem des VblkerreeMs, Kap. v. s. 8. 

" The venerable authority of the Ootisolato.” — Lord Stoivell, The Henrkk 
and Maria, 6 C. Rdb. Adm. Rep. p. 4. 

" II Consolato del Mare, cap. 273, expressly says, ‘ The enemy's goods 
found on board a friend’s ship shall be confiscated ; ' and this is a book 
of great authority.” — The Hukeof Retvcastlds Letter to M. Michd, note to 
first Proposition, p. 64. 

(s) TAe and others, Edwardi Adm. Rep . ; also published sepa- 
rately. 




56 


INTERNATIONAL LAAV. 


there be courts for the administration of International Law 
sitting in the belligerent countries (a). 

The duties of those courts are faithfully described by Lord 
Stowell, in the case of the Swedish Convoy (5) : “ In forming 
“ my judgment, I trust that it has not for a moment escaped 
“ my anxious recollection what it is that the duty of my sta- 
“ tion calls for from me ; namely, not to deliver occasional 
“ and shifting opinions to serve present purposes of particular 
** national interest, but to administer with indifference that 
** justice which the Law of Nations holds out, Avithout distinc- 
“ tion, to independent States, some liappening to be neiitral, 
and some belligerent : the seat of judicial authority is indeed 
“ locally here, in the belligerent country, according to the 
“ knoAATi law and practice of nations, but the laAv itself has no 
“ locality. It is the duty of the person who sits here to 
“ determine this question exactly as he would determine tlie 
" same questiom if sitting at Stockholm ; to assert no preten- 
** sions on the part of Great Britain Avhich he would not allow 
to Sweden in the same circumstances ; and to impose no 
" duties on Sweden, as a neutral country, which he Avould not 
" admit to belong to Great Britain in the same character.” 

In another case (/•), he says: It is to be recollected that 
** this is a Court of the Law of Nations, though sitting here 
“ under the authority of the King of Great Britain. It belongs 
“ to other nations as well as to our OAvn ; and what foreigners 
“ have a right to demand from it is the administration of the 
" Law of Nations simply, and exclusively of the introduction 
" of principles borrowed from our own municipal jurispru- 
“ dence, to which it is well known they have at all times 
“ expressed no inconsiderable reluctance.” 

It cannot be denied that this theory of judicial duty 
breathes the very spirit of pure and impartial justice. It is to 
be remembered, also, that the simple enunciation of such a 

(rt) See important remarks of Mablt/, Droit Ihiblic, vol. iii. pp. 360, 861 } 
and Wheaton, Hist. p. 171, note. 

(6) The Maria, 1 C, Dob. Adtn. Jtq>. p. 860. 

(c) Recovery, 6 Ib. p. 340. 



DECISIONS OP PRIZE COURTS. 


61 


theory is, to a certain extent, a guarantee for. a correspond- 
ing practice on the part of the nation proclaiming it. 
It holds up the severest standard by which to measure 
the decisions of the court ; and it witnesses beforehand, as it 
were, against any deviation from the path of duty thus 
emphatically pointed out. 

The remark of Mr. Wheaton upon this theory, expounded, 
he admits, by “ one of the greatest of maritime judges,” is, 
that those whose interests are atfected by those adjudications 
will always doubt whetlier the practice corresponds with the 
theory — especially in the case of a great maritime country, 
whose judge must, he. thinks, unconsciously feel the national 
bias in favour of whatever operates to the encouragement of 
the national navy. These judgments, however, he says, if 
the principles upon which they are founded be rigorously 
examined, may be an instructive source of information ujwn 
Prize Law ; and he himself enumerates the adjudication of 
“ Boards of Arbitrators and Prize Courts ” among the sources 
of International Law, ascribing greater weight to the former 
than to the latter authority. 

It is true that the value of the judgments referred to 
depends upon the principles, reasonings, and authorities 
upon which they rely ; but it is the constant practice in these 
cases to state the data at length, as well as the judicial con- 
clusion; and Mr. Wheaton himself does not suggest that the 
latter arc often found inconsistent with the former. 

In the very elaborate letter addressed, March 28, 1843, 
to the British Government, by Mr. Webster, then Foreign 
Secretary to the United States, that eminent person, after 
contending that there is no distinction between the right of 
Visitation and the right of Search, observes : “ If such well- 
" known distinction exists, where are the proofs of it ? What 
“ writers of authority on the public law, what adjudications 
“ in Courts of Admiralty, what public Treaties, recognize 
‘‘it?”(d) 

As reference has been, and must afterwards be made, in 


(rf) Wheaton's Hist. p. 711. 



58 


INTERNATIONAL LAW. 


the course of this work, to the judgments of Lord Stowell, 
and as it is important to mark the place which these are 
entitled to occupy among the sources of International Law, 
the opinion of American jurists with respect to them becomes 
valuable, and for many reasons. When they were delivered, 
the greater portion of Continental Europe was under the 
actual dominion, or at least the predominating influence, of 
France, which then disregarded all the authorities of the 
ancient Law of Nations. These judgments contain frequent 
references to French writers upon Maritime Law, and to 
Vattel generally, as a work of the highest authority. The 
assent or dissent therefore of France, and the countries 
subject to France at that time, could not affect the merit of 
these decisions. The United States of North America, 
however, were naturally inclined to favour France from 
motives of gratitude. These States composed a free maritime 
nation, daily increasing in all the elements of national 
greatness and prosperity ; occupying an immense territory 
in the New World; avowedly adhering to the system of 
International Law (e) as acknowledged and received at the 
time when they became an independent kingdom: they 
were themselves, during a portion of the momentous period 
over which these decisions extend, a Neutral Power, upon 
whom the principles laid down in them pressed, however 
justly, with great and acknowledged severity ; and during 
another portion a Belligerent, actuated by the keenest 
hostility against the country in which tlicse judgments were 
delivered. 

The verdict of such a nation is unquestionably entitled 
to great weight in matters of International Law, and not 
open to the charge, with respect to this epoch at least, of 
partiality to the Prize Tribunals of Great Britain. For this 
reason the opinion of Mr. Chancellor Kent upon the sub- 


(e) (WwrfanB* upon Americm Law, ly Mr. ChmeeUor Kent, vol. i. 
p. 1, mting instance of the 4th of December, 1781: Annab of Congreu. 
voL m 186. 



DECISIONS OF PRIZE COURTS. 


59 


jecfc of Lord Stowell’s judgments is very valuable. A portion 
of the Chancellor’s work was devoted by him to the subject 
of International Jurisprudence, and it is certainly in no 
way inferior to the rest of the Commentaries which have 
earned for him a very high legal reputation in the Western 
hemisphere {/) : — 

“ In the investigation of the rules of the Modern Law of 
“ Nations, particularly with regard to the extensive field of 
maritime capture, reference is generally and freely made to 
the decisions of the English Courts. They are in the habit 
‘^of taking accurate and comprehensive views of general 
“ jurisprudence, and they have been deservedly followed by 
“ the Courts of the United States on all the leading points 
“ of National Law. We have a scries of judicial decisions 
in England and in this country, in which the usages and 
** the duties of nations ai’o explained and declared with that 
“ depth of research, and that liberal and enlarged inquiry, 
“ which strengthen and embellish the conclusions of reason. 
“ They contain more intrinsic argument, more full and pre- 
cise details, more accurate illustrations, and are of more 
authority, than the loose dicta of elementary writers. When 
“ those courts in this country which arc charged with the 
administration of International Law have difiered from the 
** English adjudications, we must take the Law from domestic 
“ sources ; but such an alternative is rarely to be met with ; 
“ and there is scarcely a decision in the English Prize Courts 
“ at Westminster^ on any general question of public right, 
** that has not received the express approbation and sanction 
“ of our National Courts. We have attained the rank of a 
great commercial nation ; and war, on our part, is carried 
“ on upon the same principles of maritime policy which have 
“ directed the forces and animated the councils of the naval 
“ powers of Europe. When the United States formed a 
component part of the British empire, our Prize Law and 
theirs was the same ; and after tlie revolution it continued 


(/) Kent's Gnnmmtanes upon Amcrtcm Law, vol. i. p. 8. 



60 


INTERN ATJ ON AL LAW. 


" to be the same as far as it was adapted to our circum- 
"stances, and was not varied by the power which was 
" capable of changing it. The great value of a series of 
"judicial decisions in prize cases, and on other questions 
" depending on the Law of Nations, is, that they render 
" certain and stable the loose general principles of that Law, 
" and show their application, and how tliey are understood, in 
"the country where the tribunals are sitting. They are, 
" therefore, deservedly received with very great respect, and 
" are presumptive, though not conclusive, evidence of the Law 
" in tiie given case. This was the language of the Supreme 
" Court of the United States so late as 1815 : and the 
decisions of the English High Court of Admiralty, espe- 
" daily since the year 1798, have been consulted and 
" uniformly respected by that Court as enlightened commen- 
" taries on the Law of Nations, and affording a vast variety of 
instructive precedents for the application of the principles 
" of that Law.” 

Few names have obtained greater celebrity upon questions 
of International Law than that of Dr. Story ; and with his 
opinion this branch of the subject may be concluded : “ How 
" few,” he says, " have read with becoming reverence and 
" zeal the decisions of that splendid jurist — the ornament, I 
" will not say, of his own age or country, but of all ages and 
" all countries ; the intrepid supporter equally of neutral and 
“belligerent rights; the pure and spotless magistrate of 
"nations, who has administered the dictates of universal 
"jurisprudence with so much dignity and discretion in the 
" Prize and Instance Courts of England ! — Need I j>ronounce 
" the name of Sir AVilliam Scott ? ” 

During tlie last Russian war the English Prize Tribunals — 
both the High Court of Admiralty and the Judicial Com- 
mittee of the Privy Council — applied to the cases brought 
before them the principles of the American and English 
judgments as of equal authority. 

During the late civil war in the United States the tri- 
bunals of both belligerents professed to administer, and with 



DECISIONS OP PRIZE COURTS. 


61 


very few exceptions did administer, the law as already ex- 
pounded by these Courts. 

The seal of Courts of Admiralty, being also Courts of 
International Law, is judicially taken notice of, without 
positive proof of its authenticity, by tlie Courts of all 
Nations (y). 


(g) Yeatm v. 6 Cranch {AnieHcnn) Rqt. pp. 335, 343 (6%. J. 
Marshall)] Thompsmi v. Sf.ewartf’A Con, (American) Rep, p. 171; 2 
Kent's Commentaries^ p. 121, note. But the rule is dillerent as to the 
seal of other foreign courts; Delnjivld v. Handy 3 Johns, (American) 
Rep, p. 310 ; Desobrey v, Laistrey 2 Harr, John^, {A7nerican) Rep, p. 192 ; 
Ile^m/ V. Adei/y 3 Fasty 221. 



62 


INTBKNATIONAL LAW. 


CHAPTER VII. 

WKITEKS ON INTEKNATIONAL LAW. 

LYIII. The consent of nations is further evidenced by 
the concurrent testimony of great writers (a) upon Inter* 
national Jurisprudence. The works of some of them have 
become recognized digests of the principles of the science ; 
and to them every civilized country yields great, if not 
implicit, homage (i). 

When Grotius wrote his immortal work he derived but 
little help (c) from any predecessor in the noble career which 


(a) See same vciy sensible remarks on ibis bead, by M, Ortolan, 
IHplomatie de la Mer, 1. i. c. iv. t. i. p. 74, itc. 

" Text writers of authority showing what is the approved usage of 
nations, or the geueml opinion inspecting their mutual conduct, with 
the deiimtiuns and niodificntious iutrodueed by general consent," are 
placed as the second branch of International Law by WJmitm. — El. 
of Int. Law, voL i. p. 6J). 

(b) The English courts of Common Law, and English commentators 
upon that law, both in cases of public and private International I^aw, have 
been in the habit of referring to other works of these foreign aiithoin, as 
containing evidence of the law to be administered in England : «. g. see 
Comyrii J)ige^, tit. Anilmsador, where Orolim is cited. See the autho- 
rities cited by Lord Mamjidd in the cases relating to ambassadorial pri- 
vileges, mentioned in a later part of this work; and see the whole part 
of this work on Comity, or Private Intemaf ional Laio, Lard Man^dd, 
in fact, built up the fabric of English Oomraefcial Law upon the foun- 
dation of the principles contained in the works of foreign jurists. In 
the Admiralty and Eccleriastical Courts, these works had been always 
niferred to as authorities. It is by these courts indeed, and the prac- 
titioners therein, that the study of Civil and International Law was alone 
preserved from perishing in these Islands : the seed was sown and kept 
alive in them, which subsequently bore fruit of which no country need 
be ashamed.— See IWface, by Dr. PMllmare, to Sir O. Zee’s E^mrts. 

(c) Oratii Prdegomma, xxiii., as to the auxilia ecripti which he bad. 

“ ^lent autem gentium sententise de eo quod inter illos justum esse 



WBITEBS ON INTEBNATIONAL LAW. 


63 


he chose for himself. Alberlcus Gontilis, Arthur Duck^ and 
Suarez had indeed left him materials of which he fully 
availed himself, as well as of the labours of publicists like 
Ayala and Bacon, and of the commentators on the Civil and 
Canon Law; but he may be almost said to have himself laid 
the foundation of that great pillar of International Law — the 
authority of International Jurists. His own book, one of 
the firmest barriers yet erected by Christendom against bar- 
barism, and the works of some subsequent writers upon the 
same subject, have long obtained the honour of being the 
repositories to which nations have recourse for argument to 
justify their acts or fortify their claims. They are, indeed, 
Avith the modifications that reason and usage apply, ad- 
mitted umpires in International disputes ; and tliis fact has 
greatly contributed, and still does contribute, to clothe the 
Law of Nations, more and more, with the precision and cer- 
tainty of positive and municipal law. 

The value ascribed to the opinion (rf) of each writer, in 
the event of there being a difierence between them, is a point 
upon which it is irajmssiblc to lay down a precise rule ; but 
among the criteria of it mil be the length of time by which 
it is, as it were, consecrated, the period w'hcn it was expressed, 
the reasoning \ipon which it rests, the usage by which it has 
been since strengthened, and to the previous existence of 
which it testifies («). 


delKtt triplicl modo nianif«atari, nioribiis scilicet et usu, ^metis et feede- 
ribita, et tacita approliatione juris rcgularuiu, a pmdentibiis ex ip^ 
rerum causis per interpretationeni et per ratioiiem deductarum.’’ — 
Wamkoniff, Doctrimt Juris Philosopfiira Aphorismia Distinda (a must 
valuable little worli), s. 140 p. 190. 

(d) No rule of International IjHW exists like that of tbe Imperial 
'Law of Rome, which decided that the opinions of Papinkmua, Pauius 

Oaim, UlpuirmSf and Modeatinua .should have the force of law; that 
ill points where they ditlcred, the opinion of the majority, and, where 
they were equally divided, the side on which Pajmiianm vitis found, 
should prevail. — Th. Cod.i, 4, I)e reapmiaia Prudentum L. un.; lb. ii, 
3, L. un. JV. de Sent. Paaa.; Cod. ix. 61, 13 de Sent. Faaa, j Muldm- 
irruchy Doctr. Pond, iV. s. 8. 

(e) Vaftd cited “as a witness as well na a lawyer .” — The Maria, 
1 Cl Pob. Adm, Pep. p. 863. See the case generally on this point. 



64 


INTEKNATIONAL LAW. 


When, on the other hand, their authority, in the absence 
of any contrary usage or convention, may be safely said to 
be binding upon all nations : ** All writers upon the Law 
of Nations unanimously acknowledge it,” is not the least 
of Lord Stowell’s arguments for the Belligerent’s right of 
search (/). 

** In cases where the principal jurists agree,” Chancellor 
Kent says, " the presumption will be very great in favour 
“ of the solidity of their maxims ; and no civilized nation 
“ that does not arrogantly set all ordinary law and justice at 
“ defiance will venture to disregard the unifonn sense of the 
“ established widters of International Law ” (ff). 

And how great is the advantage of tins, that a controversy 
between France and England should be capable of being 
referred to principles laid down by an arbitrator who existed 
long before the disunion arose, and whom it is impossible to 
accuse of partiality ! This remark supposes the reference 
made to a neutral jurist, belonging to neither country; but the 
advantage is not so limited — it may be that the authorities 
belonging to the very country which is urging a demand 
will be found to pronounce against it. 

If the authority of Zouch, of Lee, of Mansfield, and, above 
all, of Stowcll, be against the demand of England — if Valin, 
Domat, Pothier, and Vattel (A) be opposed to the preten- 
sions of France — if Grotius and Bynkershoek confute die 
claim of Holland — Puffendorf (*) that of Sweden — if 


(/) The Maria, 1 C. JRob. Adm. Rep. p. 380. 

Ig) Kent'e CotnmetUaries, toI. i. p. 19, 

(/t) “I stand with cunfidence upon all fair prindples of loason — 
upon the distinct authority of Fattel—nfon the Jwditvtee of other great 
maritime countries as well as those of our own countries — ^when I ven- 
ture to lay it down that, by the Law of Nations,” &c.— ZV m; Maria, 
1 C. Rob. Adm, Rep, p. 369. 

(t) So, in the case of the Swedish Convoy, Lord StaweR said : “ If 
authority is required, I have authority — and not the less weighty in 
this question for being Swedish authority ; I mean the opinion of that 
distinguished person — one of the most distinguished which that country 
(fertile as it has been of eminent men) has ever produced — X mean 



WniTBttS ON INTERNATIONAL LAW. 


65 


H ffln ecciuSf LeibnitZj and Wolff array themselves against 
Germany — if Story, Wheaton, and Kent condemn the act 
of America, it cannot be supposed (except, indeed, in the 
particular epoch of a Revolution, when all regard to law 
is trampled under foot) that the argumentun ad patriam 
would not prevail — at all events, it cannot be doubted that 
it ought to prevail, and should the country relying upon 
such authority be compelled to resort to arms, that the guilt 
of the War would rest upon the antagonist refusing to be 
bound by it. • 

It is with reference to the authority of jurists that we find 
Lord Stowell using such expressions as these : It is the 
“ necessary consequence acknowledged in all books.''' “ The 
“institution («>. of a particular State with respect to a 
“ matter of the Law of Nations) must conform to the text 
“ law, and likewise to the constant usage upon this matter; ” 
and again ; “ All writers upon the Law of Nations unani- 
“mously acknowledge it, without the exception of even 
“ Hubiicr himself, the great champion of neutral privileges.” 

And Lord Mansfield, deciding a case in which the privi- 
leges of the attendant of an ambassador were conccnied, 
said: “ I remember, in a case before Lord Talbot, of Buvot 
“ V. Barbut, upon a motion to discharge tlie defendant (who 
“ was in execution for not performing a decree) ‘ because he 
“^was agent of commerce, commissioned by the King of 
“ ‘ Prussia, and received here as such,’ the matter was very 
“ elaborately argued at the bar, and a solemn, deliberate 
“ opinion given by the court. These questions arose and 
“ were discussed : ‘ Whether a minister copld, by any act 
“ ‘ or acts, wjttve his privilege?’ — ‘ whether being a trader 
“ * was any objection against allowing privilege to a minister 

* personally ? ’ — ‘ whether an agent of commerce, or even 
“ ‘ a consul, was entitled to the privileges of a public minis- 

Baron Pigfendoif. .... In the opinion, then, of this wise and vixtuous 
Swede ... his words are memorahle. I do not overrate their im- 
portance when I pronounce them to be well entitled to the attention of 

country.” 

VOL. I, V 



(56 INTERNATIONAL LAW. 

— 'what was the rule of decision?’ Lord Talbot 
" declared a clear opinion) ' That the Law of Nations, in 
** ' its full extent) was part of the law of England ; ’ ' that 
'' ' the Act of Parliament was declaratory, and occasioned 
» < by a particular incident; ’ ' that the Law of Nations was 

to be collected from the practice of different nations, and 
“ * the authority of writers.’ Accordingly, he argued and 
"determined from such instances, and the authority of 
" Grotius, Barbeyrac, Bynkershoek, Wiquefort, &c., there 
" bemg no English writer of eminence upon the subject ” {k). 

In truth, a reverence for the opinions of accredited writers 
upon Public and International Law has been a distinguish- 
ing characteristic of statesmen in all countries, and perhaps 
especially of those who have deserved that appellation in 
this kingdom. 

It has been felt, and eloquently expressed by them, that 
though these writers were not infallible, nevertheless, " the 
" methodized reasonings of the great publicists and jurists 
"formed the digest and jurisprudence of the Christian 
“ world ; ” that their works contained principles which in- 
fluenced every State, and constituted the permanent and 
embodied voice of all civilized communities ; and that upon 
their decisions depended one of the best securities for the 
observance and preservation of right in the society of nations. 

Sir James Mackintosh, in his speech on the annexation of 
Genoa to the kingdom of Sardinia, touched upon this im- 
portant subject, in the following well-weighed and emphatic 
terms : “ It is not my disposition to overrate the authority 
“ of this class of writers, or to consider authority in any case 
" as a substitute for reason. But these eminent writers were, 
" at least, necessarily impartial. Their weight, as bearing 
" testimony to general sentiment and civilized usage, receives 
" a new accession from every statesman who appeals to their 
" writings, and from every year in which no contrary practice 


(^) Triquet y. Bath, Teach y. Satne, 8 Bvrrom' 1480. 
Burke's Works, vol. viii. p. 286 ; Letters on a Begicide Peace, 




WBTTBR8 ON INTERNATIONAL LAW. 


67 


•* is established, or hostile principles avowed. Tlieir works 
« are thus attested hy successive generations to he records of 
« the customs of the best times, and depositories of the deli- 
<< berate and permanent judgments of the more enlightened 
part of mankind. Add to this, tlrat their authority is 
“ usually invoked hy the feeble, and despised by those who 
** are strong enough to need no aid from moral sentiment, 
and to bid defiance to justice. I have never heard their 
“ principles questioned, but hy those whose flagitious policy 
“ they had hy anticipation condemned ” (/). 

In the same spirit Cicero had long ago observed : “ Qui 
** peritis non putat esse obtemperandum, non homines laidit, 
“ sed leges ac jura lahefactat” (»<)• 

(J) The MieceUamoua Workt of Sir J. MaclatUosh, vol. iii, p. S42. 

(w») Cicero, pro Cescim, ss. 23^-26. 

Snares has tho following remarka concerning what he designates 
the doctritudk interjiretatio of Laws: “De hac igitur interpretatione 
certiim c^t, non hal)ere vim legis, qida non procedit a potestate juris- 
dictionis, sed a sciuntia, et judicio prudentum ; el ideo dicimus per 
se non inducoro ohiigationem. (jluia vevo in oroni arte judicium peri- 
toTum in ilia magnum indneit prohahUitatem, ideo etiam in liae legum 
humanarum Interpretatione hacc ducti'inalis iuterpretatio magnum habet 
authoritatis pondus. Iii quo varii gradus osso po.ssnnt; nam ri in ali- 
ciijns legis iiitclligentia omnes interpreter convenient, faciuut humanam 
certitudinem, et regidariter loquendo, etiam indimunt ohiigationem ser- 
vantU legem, et utendi ilia in praxi juxta talem iuteipi’etationem.” — 
He LegUrne, Ub. vi. 



68 


INTERNATIONAL LAW. 


CHAPTER VIII.. 

RECAPITULATION OP SOURCES OP INTERNATIONAL LAW. 

The sources^ then, from which International Jurisprudence 
is derived, are these : — 

1. The Divine Law, in both its branches — namely : The 
principles of Eternal Justice implanted by God in all moral 
and social creatures, of which nations arc the aggregate, and 
of which governments are^thc International Organs. 

2. The Revealed Will of God> enforcing and extending 
these principles of Natural Justice. 

3. Reason, which governs the application of these prin- 
ciples to particular cases, itself guided and fortified by a 
constant reference to analogous cases and to the written 
reason embodied in the text of the Roman Law, and in the 
works of Commentators thereupon. 

4. The universal consent of Nations, both as expressed 
(1 ) by positive compact or treaty, and (2) as implied by usage, 
custom, and practice: such usage, custom, and practice 
being evidenced in various ways — by precedents recorded in 
History ; by being embodied and recorded in Treaties ; in 
public documents of States ; in the Marine Ordinances of 
States ; in the decisions of International Tribunals ; in the 
Works of eminent writers upon International Jurisprudence. 

LIX. It may be well to illustrate by an example the prac- 
tical application of the principles of International Law de- 
rived from the sources which have been enumerated in the 
preceding pages. 

In 1839, the Emperor of China seized the opium of 
certain British merchants at Canton. Reparation was 
demanded by Great Britain, and on the refusal of it, war 



Instance of application of law. 


69 


followed between the two countries. Peace being made^ 
and the reparation promised, a question arose, Whether, 
according to the principles of International Law, the measure 
of compensation which one government ought to demand of 
another for the forcible seizure of the property of its subjects 
was the cost price of the property, or its market price at the 
place of seizure ? 

This curious and important question between a Christian 
and civilized Heathen nation might have been impartially 
answered by a reference to the principles of the Koman Law, 
and to the commentaries of foreign jurists, aided by the 
analogy derived from similar cases adjudicated upon between 
subject and subject, both in England and other countries. 
The decision which these authorities pronounced would have 
furnished no unfair measure of the redress due from the 
Chinese Govennnent to the subjects of Great Britain. 

The claims of the British Government on behalf of her 
mci’chant subjects might have been supported by tlie folloAV- 
ing arguments: First, the obligations which the Chinese 
Goveniment would have incuned if they had simply consti- 
tuted themselves the purchasers of the ojnum, and deferred 
the payment till the period of the treaty ; and, Secondly, the 
obligations which they incurred by the act of violence, and 
the character of wrong-doers with which that act clothed 
them. 

As to the first point, then — that is to say, let the Chinese 
be considered simply as debtors, who had delayed the fulfil- 
ment of their contract till the price of the article had fallen in 
the market Perhaps the portion of the Boman Law which, 
on account of its acknowledged wisdom and equity, is most 
generally incorporated into the municipal codes of Europe, 
is that which relates to obligations. One of the most cele- 
brated expounders of this branch of Jurisprudence is Pot/t ter. 
In the thii'd article of the second chapter, and first part of 
his Treatise, he considers " des dommages et int4rets resul- 
“ tant, soit de l’inex6cution des obligations, sotf du rctorrf 
" apporte a leur execution'* And he begins by defining his 



70 


iM'JiUKATlOMAL LAW. 


subject thus: “Oh appelle dommages et la perte 

“ que quelqu’un a faite, et le gain qu*il a manque de faire: 
“ e’est la definition qu’en donne la loi ( 1 3 Ff. Bat. rem hab .) — 
“ Quantum mea interfuit, id est quantum mihi abest, quan- 
“ tumque lucrari jiotuV'’ The result of his examination of 
this law is, that in all cases, eveil where the debtor is guilty 
of no bad faith, he shall be compelled to indemnify the 
creditor both for the actual loss which he has sustained, and 
for the gain which it may reasonably be supposed that 
he would have made, had he not been impeded by his en- 
gagement. In cases of bad faith, the rule is much more 
severe. 

A particular kind of action was known to the Boman Law, 
in cases where the price or value of a thing in which one 
person was indebted to another was sought in lieu of the thing 
itself, payment of which had been delayed. The action was 
called, for an antiquated reason which need not be discussed, 
Condictio triticaria («); and it is most learnedly treated 
by J. Voett who says, it is necessary to consider, first, whether 
the value of the thing is the principal object of the suit, or 
whether the thing itself be the pi-incipal object, and the 
value only the necessary substitute, under the circumstances. 
If it be the value of the thing, if the price was to be paid in 
money, the law, he says, is clear,— the sum due is to be 
measured by the value of the article at the time when the obli- 
gation was first contracted, not at the time when the pay- 
ment was enforced (6). If tlie thing itself be the princijial 
object of the suit, its value should be estimated, either by that 
which it was worth at the time of beginning the suit (litis 
contestatio), or at the time the sentence was pronounced 
(coiidemnationis tempits)', provided always that no delay has 
been caused by the party against whom the suit is brought, 

(а) IHg, de Comlic. Tritic. xiii. iii. 1. 

(б) “ Nequffi aliam contrahentes videri possant sestimaliosem adeoque 
quanlatatem pecuniamm respexisse, qnam qute fuit eo tempore, quo 
piimitus obligatio naacebatur, sive boun fidm sive stiicti juris negotiiun 
at"— Voet, ad I'and. 1. xiii. tit. iii 


INSTANCE OP APPLIOATIOlf OF LAW. 


71 


because then dubium non est, quin frustratio moratori, et 
« non alteri obesse debeat; ac propterea, si inter moram et 
litem contestatam remve judicatam res pluris valuent, quam 
“ ipso litis contestatre vel condemnationis momento, reus in 
« id, quanti res plurimi fuit, a tempore morse ad tempus litis 
“ contestatre, in strict! juri«, aut rei judicatse in bonse fidei 
“ judiciis, damnandus foret.” 

There can be no doubt that the Chinese Government was 
the Morator ” in this case, or that, according to the maxim 
of jurisprudence which has been cited, it ought to have been 
condemned in the costs of the opium at the time it hccome 
possessed of that article, unless, between that period and the 
period of restitution, the opium had become of greater value ; 
for the only doubt raised by Voet is, whether in cases of bona 
files, the augmented price should be due. 

Again, from the time o^ the seizure, the Chinese Govern- 
ment became the Emptnr ; and whatever depreciation of 
price hap[)ened in the interim betwixt that time and the treaty, 
enured to the detriment of the purchasers, no maxim being 
clearer than “periculum rei vendita; ad emptorem statim 
“ pertinet ” (c). 

Again, let the Chinese Goveniment be considered, not as 
the actual purchasers, but as securities for the payment of 
the money, and let the question be tried by the principle of 
Commercial, which is fy»<«sj-Litcrnational Jurisprudence. 
What is the value in which the insurer is bound to indemnify 
tlie insured — that of the goods at the time of their loss, or 
tliat of their invoice price ? Emvrirjon, no light authority, is 
clear upon this point. He says (rf), adopting the language of 
other writers : “ En fait de pr6t d la grosse et d'assurance, 
“ on ne fait jwint attention d la valeur des eifets au temps de 
“ leur perte ; mais senhment a ce quails valoient an temps de 
“ lenr charyement.” So the English law adopts the original 
value of the goods as the basis of the calculation of the 

(c) Vide passim, Dig, lib. xvili. tit. vi.; Cod. lib. iv. tit. xlviii. 

{d) Tom. i. p. 262 . 



72 


iNtBENATIONAL lAW. 


amount in which the partM loss of the insured is to be 
indemnified by the insurer (e). 

Secondly, as to the obligations which the Chinese Govern- 
ment incurred by its act of violence, and by the character 
of a wrong-doer with which it thereby clothed itself ; and if 
the language and spirit of Botnan Jurisprudence was in 
favour of the claim of the opium owners against the Chinese 
Govemment, considered as simple debtors, or as securities for 
debtors, infinitely more was it in their favour against that 
Government ti'eated as wrong-doers. 

And, fimt, as to the Civil Law, which throughout tliat 
large chapter, “ De obligationibus ex delicto nascuntur,*’ 
teems with analogies, and those of ^cat force and directly 
bearing upon this subject 

When a party, ^vrongfully di^rived, was reinstated in 
his property by the well-known decree of tl»e Praetor, the 
“ restitutio in integrum ” — the law said, “ Sive qui((i amiserit 
sive lucratus non s^j restitutio facienda est, etiamsi non ex 
“ bonis quid amissuni lit ; ” and in cases of theft, where the 
sentence restored with heavy damages the stolen property, it 
also provided for the value of the property where it could not 
be so restored — aestimatione relata in id tempus quo fur- 
“ turn factum est ” (/). 

So by the “ Lex Aquilia,” where there had been “ dam- 
** nura injuria datum,” in consequence of which the tbii^ 
had diminished in value, the measure of restitution was 
(juanti ea res in aAno plurimi fnit tantum domino dare 
damnetur ” (p ) ; and again it is said, placet ad id tempus 
“ s})ectandum quo res unquam plurimi fuit ” (A). 

So Pothier, in the chapter already cited, after stating the 
mitigating circumstances attaching to transactions of Ima 
Jides, observes (*) ; Les principes que nous avons dtablis 

(if) Lan^hom v. Alhmttf 4 Tamtovi) Reports, €11. 

(/) Dm/, dt. FurtiSf xlvii. t. U. 61, 

Iwit. iv. t. iii. De Leye AquUia, 

(jf) lAy. lib. ix. tit. ii. 23. 

(A) Diy. lib. xiii. tit. i, 8. 1. De Gmdictione FSirtiva. 
it) Lib. i. p. 72. 




INSTANCE or AtPLICATION OP LAW. 73 


<< jusqu’d. present n’ont pas lieq, lorgque c’est le dol de mon 
** d^biteur qul a donne lieu k mes dommages et int^rSts. En 
f‘ce cas le dtSbiteur est tenu indistinctement de tons les 
« dommages et interi^ts que j’ai soufferts, auxquels son dol a 
donn^ lieUj non-seulement de ceux que j’ai soufferts par 
“ rapport & la chose qui a fiut I’objet du contrat, propter rem 
ipsam, mais de tous les dommages et int^rSts que j’ai souf- 
ferts par rapport & mes autres biens, sans qu’il y ait lieu 
de distinguer et de discuter en ce cas, si le debiteur doit 
“ 6tre cens^ s’y ^tre soumis ; car celui qui commet un dol 
“ s’oblige, veiiti nolit, a la reparation de tout le tort que ce 
“ dol causera.” *4.; 

Grofius (J), in thact chapter of his work which treats Dc 
“ damno injuria date, ct de obligationibus quas ex delicto 
“ nascuntur,” fully adopta^these maxims of the civil law. 

To the same effect are the instanees cited by Sir John 
Davis (A), in a very curious case, called “ Le case de mixt 
“ moneys.” In that case the English J.*rivy Council (1), as- 
sisted by the Judges, seem to have slid, that if a man, upon 
marriage, receives 1,000/. as a portion with his wife, paid in 
silver money, and the marriage is dissolved causa precon- 
tractus, so that the portion is to be restored, it must be 
restored in equal good silver money, though the State shall 
have depreciated the currency in the meantime (m) ; so if a 
man recover 100/. damages, and he levies that in good silver 
money, and that judgment is afterwards reversed, by which 
the party is put to restore back all he has received, the 
judgment creditor cannot liberate himself by merely re- 
storing 100/. in the debased currency of the time, but he 
must give the very same currency that he had received. 

To the same, or even to a stronger effect, were the decisions 
of Lord Stowell (a) in restoring captured vessels which had 

(j) BeJ.B.ei P. lib. ii. c. xm 
(ft) Sir John Dmis Mepotix, p. 27. 

(0 2 Knappf Privy Council Bep. p. 20. 

(»t) Conf, BurhOf Thoughts on the French Revolutiotif v. 277. 

(n) The Iswy, 3. C, iZoft. Adm, Bep. p. 208. 




74 


UMTEKNATIONAL LAW. 


been condemned hy illegally constituted 00014)8 in the West 
Indies. The ship and cargo were directed to be restored in 
value \ and on reference being made to the registrar and 
merchants, they took the invoice prices as the measure of the 
value, allowing upon it ten per cent, profit. Nor was this a 
solitary case ; it was, as the Queen's advocate of that day 
smd, “ A question in wliioh a great number of cases, and very 
considerable amount of property, were involved ” (o). 

Lastly, there was in favour of this position the elaborate 
judgment of Sir William Grant, in the case of Pilkington v. 
The Commissioners for Claims on France (/>). The circum- 
stances of that case were, that the Revolutionary Government 
had confiscated the debts owing from the subjects of France 
to those of G reat Britain. By the Treaty of 1 8 1 4 compensa- 
tion was to be made to the latter. Between the decree of 
confiscation and the repeal of it, the assignats in which the 
debts were to be paid had been depreciated in value : it was 
disputed whether or no tlie depreciation should be charged 
to the French. Sir William Grant, after touching upon the 
curious question of depreciated currency as affecting the 
relations of debtor and creditor, observes : “ I have said it is 
“ unnecessary to consider whether the conclusion drawn by 
“ .Vinnius or the decision in Davis’s Reports be the correct 
‘‘one, for we think this has no analogy to the case of 
“ creditor and debtor. There is a wrong act done hy the 
“ French Government ; then they are to undo that wrong act, 
“ and to put the party into the same situation as if they never 
“ had dime it. It is assumed to be a wrong act, not only 
“ in the Treaty, but in the repealing decree. They justify it 
“ only with reference to that which, as to this country, has a 
false foundation — ^namely, on the ground of what other 
** Governments had done towards them, they having confis- 
“ cated the property of French subjects ; therefore they say, 
“ we thought ourselves justified at the time in retaliating 


(®) The laicy, 3 C. Sob. Adm. Sep. p. 210. 
(p) 2 Kniipp, Privy domed Sep. p. 19. 



INSTANUifi OJ!' APPLICATION OP LAW. 75 

Upon the subjects of this country. That being destitute of 
« foundation as to this country, the Kepublic themselves, in 
effect, confess that no such decree ought to have been 
made, as it affected the subjects of this country ; therefore 
« it is tiot the case of a debtor paying a debt at the 

“ day it falls due, but it m the case of a wnmg-doer who 
“ must undo, and completely undoy the wrongful act he has 
<< done ; and if he has recived the assignats at the value of 
“50rf., he does not make compensation by returning an 
“ assignat which is only worth 20d, — he must make up the 
“ difference between the value of the assiynat at different 
“ periods * * ♦ ». If the act is to be undone, it must be 
completely undone, and the party is to be restored to the 
** situation in which he was at the time the act to be undone 
“ took place.” 

If in the case of the Biitish merchants and the Chinese 
Government, the Treaty had not specified the sum of six 
millions for the compensation, but merely promised in gene- 
ral terms to restore the value of the opium seized — then the 
principles of International Law which govern the construc- 
tion of Treaties (q) would have entitled the original posses- 
sors of the opium to demand the inost favourable interpreta- 
tion which could be put upon the term “ value ” (r). 

The conclusion then to which we are led with respect to 
the case which has been discussed, from the application of 
the principles of International Law, derived from all the 
sources which have been enumerated, is this: That the 
British Government would have been justified by the Law 
of Nations in demanding thecosfjndce of the opium from the 
Chinese Government, even if the depreciation in value of that 
article at the time of tlie conclusion of the Treaty had been 
the result of the usual fluctuations of commerce. It is 
obvious that tins conclusion applied with increased force to 
a case where the diminished value was one of the conse- 
<luences of the wrongful acts of that Government itself. 


(y) Orotius, lib. ii. c. xiv. 


(r) Vattd, t. ii. p. 33. 



iKtKRKAtlONAL LAW. 


?6 


CHAPTER IX. 

OBJECTION THAT THERE 18 NO LAW BECAUSE NO 
SUPERIOR. 

LX. It is sometimes said that there can be no Law be- 
tween Nations because tliey acknowledge no common superior 
autliority, no International Executive capable of enforcing 
the precepts of International Law. This objection admits of 
various answers; First, it is a matter of fact that States and 
Nations recognize the existence and independence of each 
other; and out of a recognized society of Nations, as out of 
a society of individuals. Law must necessarily spring. The 
common rules of right aijjwoved by Nations as regulating 
tlieir intercourse are of themselves, as has been shown, such 
a Law. Secondly, the contrary position confounds two 
distinct things ; namely, the physical sanction which Law 
derives from being enforced by superior power, and the moral 
sanction conferred on it by the fundamental principle of 
Right; the error is similar in kind to that which has led 
Jurists to divide moral obligations into Perfect and Imi)er- 
fect. All moral obligations are equally perfect, though the 
means of compelling their performance is, humanly speaking, 
more or less perfect, as they more or less fall under the cog- 
nizance of human laws (a). In like manner, International 


(a) Kantf RechttldtrCf s. 64 wy,—* Wftnikimig sajs, with much force 
and -truth, “Nonne ex luutua inter sese iuvicem a^itioue inter eas 
q^ussdam consiituitur societas, et probantur communes justi re^pulte quie 
verum eificiuntP miscet vir summns (i. e. KanS) juris 
cum jusii notione, esque in re parum ribi constans esse videtOT.”— Ifee- 
inm Jwnt IMotopMca, s. 147, 

SrmuCt PhSviopht/ of the Human MM, vol. iv. pp. .300-7-8, 


OBJECTION TO INTBENATIONAL LAW. 


77 


Justice would not be the less deserving of that appellation, 
if the sanctions of it were wholly incapable of being enforced. 

How far and by what means they are capable of being 
executed are questions which have been already alluded to, 
and which wiU be more fully discussed in a subsequent portion 
of this work, when the International Process of enforcing the 
execution of Internatioual Justice by Negotiation, Treaties, 
Beprisals, or War comes under consideration. 

But, irrespectively of any such means of enforcement, the 
Law must remain (i). God has willed the Society of States 
os He has willed the society of individuals. The dictates of 
the conscience of both may be violated on earth : but to the 
national, as to the individual conscience, the language of a 
profound philosopher is applicable : Had it strength as it 
‘‘had right, had it power as it has manifest authority, it 
“ would absolutely govern the world ” (e). 


(J) Kdtejibomf Kritik des Vdllcm^echfSj lias a very good chapter on 
this head, entitled, Die Liiugner des Voikerrec/its, Kap, 'vi. p. 306: Mit 
llecht iiennt Siem es eiuen kaMm uiid Irostlnsen Satz, dass ea kein 
Viilkerrecht geben aolle,” — Stahl (Kechtsphilosophie) erklaii;, uicht 
nlles lleclit sei erzwiiigbar, unter Anderen uicht das Volkerrecht. 
Weun man aber nur richtiger und allgemeiner AVeise die Erzwingbarkeit 
als aiissere Realisirbarkeit auilasst; so ist auch das Volkerrecht erzwingbar 
zii nermen ” — pp. 307, 3K), n. 

(c) Bishop Butler (Sermon IIL) On JSuman Nature. 

‘^Si les loix naturelles ont assez de force pour rdgner sur les Rois 
memes par la craiute de TAuteur de ces loix, elles ne regnent pas moins 
entre los liois f\OLmtre les diferentes nations coinpar^es les unes avec 
les autves. Elles sont lo seiil appiii ordinaire de ce droit qui m^rite 
proprement le uoin dc D^^iAt des Gens ; c'est-a-iUi*e, de celui qui a lieu 
de Royaiime a Roj'aume .ou d’Etat & Etat.’’ — Institution du Ih-oit jmhliCf 
xii. t. i. 408 ; (Euvres (PAipiesseau. 

“ The capability of being enforced by compulsory means is not the 
only or the most essential characteristic of Law. That characteristic 
lies much more in this — that it is the rule and order governing 
all human communities in all spheres and dimensions of private 
and public life, and also of the social relations of Peoples and States 
'with one another, which is also International Law. Compulsion only 
issues from the community as such. This is the order which ought 
to be upholden — ^the life regulated by law is the common life of 'States.’ 
--Translated from B^altenbomf 310. Cited in ^^Disepurs prononed par 



78 


INTERNATIONAL LAW. 


Thirdly, most, if not all, civilized countries have incorpo- 
rated into their own Municipal Law a recognition of the 
principles of International Law. 

The United States of North America, almost contempo- 
raneously with the assertion of their independence {d), and 
the new Empire of Brazil, in 1820, proclaimed their national 
adherence to International Law : in England it has always 
been considered as a part of the law of the land (e). 

Lastly, it may be observed on this head, that the History 
of the W orld, and especially of modem times, has been but 
incuriously and unprofitably read by him, who has not 
perceived the certain nemesis which overtakes the transgres- 
sors of International Justice ; for, to take but one instance, 
what an “ Iliad of woes ” (/) did the precedent of the first 
partition of Poland open to the kingdoms who participated 
in that grievous infraction of International Law ! The 
Boman Law nobly expresses a groat moral truth in the 
maxim — Jurisjiirandi contempts religio satis Dcum habet 
ultorem ” (^). The commentary of a wise and learned 
French jurist ui)on these words is remarkable, and may not 
inaptly close this first part of the work ; “ Paroles (he says) 
** qu’on peut appliquer 6galement il toute infraction des loix 
" naturelles. La justice de 1’ Auteur de ces loix n’est pas 
moins arm6e centre ceux qui les transgressent, que contre 
les violateurs du serment, qui n’ajoute rien 4 1’obligation 
“ de les observer, ni & la force de nos engagements, ct quiue 
sert qu’^ nous rappeler le souvenir de cette justice in- 
“ exorable ” (h). 


M. Fran<& an Oolite de France dans la sdance d’ouveituie de son Oours de 
Droit, de Nature et des Gens.” — Jounutl des Dibats, Dec. 24, 1872. 

(d) ** According to the general usages of Europe.” — Kent, Comm, i. 
p. 1. See an article in the iVortA American Review, for July-Aug. 1878, 
by the Hon. W. B. Lawrence. 

(e) Bhekttene-s Onntnenteeries on the Laws of England, book iv. c. v. 
(/) Burke, Letters on a Regicide Peace. 

(y) Cod. hb. iv. t. i. 2, De Reb. Cred, et de Jurgitrmdo {Alexander 
Severus). 

(A) jyAgftsesseau, Ib. xiv. t. i. p. 600, See, too, p, 482, 



PAKT THE SECOND. 


CHAPTER I. 

SUBJECTS OF INTERNATIONAL LAW — STATES. 

LXI. States are the proper, primary, and immediate 
subjects of International Law. It will be seen, indeed, that 
questions of this jurisprudence may be raised in matters 
affecting the persons and property both of Private Individuals 
and of Sovereigns and Ambassadors — the Representatives of 
States — and of public officers like Consuls, but mediately 
and indirectly, and in so far only, as they are members, or 
representatives, or public officers of States. Under the appel- 
lation of State are included all the possessions of a Nation ; 
so that if a Nation establish a Colony, however distant, that 
is looked upon by the eye of the Law as a part of the State, 
in the same manner as a jTOvince or city belonging to her 
ancient territory ; and therefore, unless by the policy of the 
Mother State, or by the provisions of Treaty, a different cha* 
racter has been impressed upon the Colony, the Law appli- 
cable generally to the territory of the State is applicable to 
the Colony or Colonies belonging to her : all together make 
up one State, and are to be treated as one by International 
Law (o). 

LXII. The question as to the origin of States belongs 
rather to the province of Political Philosophy than of Inter- 

(o) Vattel, lib. i. c. xviii. s. 210; “Tout ce qrd eet dit du tenitoire 
d’une nation, doit s’entendre anssi do sea colonies.” 



80 


INTERNATIONAL LAW. 


national Jurisprudence. The idea that any descendant of 
Adam ever existed in what has been falsely called a state of 
nature, that is, out of the society of his fellow-men, has 
been long ago demonstrated to be equally inconsistent with 
reason and experience. The occasions, however, which led 
to the first formation of the particular society, of which 
each man is a member, may be of various kinds. That 
society may have been created by the division of a great 
empire into several kingdoms, whether by fofi^ of arms 
or by mutual consent : thus the empires of Alexander, of 
Charlemagne, and of Charles V. were distributed, among 
their successors, into separate kingdoms. It may have been 
founded by an accidental concourse of individuals abandon- 
ing another country, according to the classical legend of 
Antenor (6) and the story of the fugitives from the oppres- 
sion of Attila, to which Venice (c) was said to owe her 
origin, or it may have been formed by the separation of 
a province from the community of which it was formerly 
an integral part, and by its establishment as an inde- 
pendent nation (^). In all the foregoing ways, ‘^novus 
“ populus suijvris nascitur ” (e). The last instance will be 


(i) Antenor potuit, mediie elapsus Achivis, 

niyricos penetrare sinus, atque intima tutus 

Begna liburnorum et fontem superai'e Timavi : 

****** 

llic tamen ille urbem Patavi, sedesque locavit 
Teucrorum, et ffenti nomen dedit, armaque fixit 
Troia."— jEn. i. 242-248. 

(c) OtlAon, Dedim and Fall of the Homan Empbre, vol. tI. c. xxxv. 
pp. 119-121. 

Vattd, liv. i. c. xviii. s. 206 ; Ridherforth, b. ii. c. ii. s. 6, p. 1269 ; 
Klidter, pt. i. c. i. ; Wheaton's Elements, vol. i. p. 91. 

(e) Orotius, de J. B. et P. lib. ii. c. x, p, 327. 

“ Concilia ccetusque hominum jure sooiati qum dilates appellantnr.” 
— Cicero, Sotm. Scip. iii. 

“ Quid est enim oivittts nisi juris societas f ''—De Rep. lib. i. 32. 

“Ifet igitur, inquit ^\incanus, respublica res populi, populus autem 
non omnis hominum coetus, quoquo modo congregatus, sed coetus mul- 
titudinis jurtit consensu et utUilatis comttmmone soeiatus,” — Jb, lib. i. 26. 

“Oonsociatio juris a^ue imperii.”— Orotius, de J. B, et P, lib. ii. 
c. ix, s. 8, p. 326. 




STATES. 


81 


more particularly considered in another part of this work, 
when the doctrine of Recognition comes under discussion. 

LXIII. But for all purposes of International Law, a State 
eivitas, Volk) may be defined to be, a people perma- 
nently occupying a fixed territory {certain sedem), bound 
together by common laws, habits, and customs into one body 
politic, exercising, through the medimn of an organized 
Government, independent sovereignty and control over all 
persons aud^ings within its boundaries, capable of making 
war and peace, and of entering into all International relations 
with the other communities of the globe. It is a sound gene- 
ral principle, and one to be laid down at the threshold of the 
science of which ive are treating, that International Law has 
no concern with the form, character, or power of the consti- 
tution or government (jf) of a State, with the religion of its 
inliabitants, the extent of its domain, or the importance of 
its position and influence in the commonwealth of nations. 
“ Russia and Genova have equal rights ” (y) : “ Une 
" petite R6publique n’est pas moins uu Etat souverain que 


'0 5}^os (*’<rrt) irh^Oos dopurrov, if^6os avyK^xvpivov, 7r\^0ns dtrivaKTov 
—mi y&p oiov 6 ^ ^ pfv yap (art 

awbtojitpop, 6 Si hx^os Suvnao'ptvov. — I^alo, Proelm in Alcib, lib. xviii. 

‘^floTTfp yhp ovbi fK. Tov rvxdvros ir^y^ovr ttoXw ylyptrau — AriU. 
P<M. V. .3, 10. 

Facultas ergo moialis emtatem giibernaiidi, quae potestatia civilia 
vocabulo nuncupari eolet a Thucydide, tribus rebus dcscribitiv, cum 
(uvitatem, quae vere eivitas dt, voeat o^dvopov, airdSucov, avrorfXij 
(lib. V. 18), suis utontem legibus, judiciis, magistratibus.” — Orotim, 
de J. B. et P. lib. i. c. iii. s. vi. 

Orotius observes (lib. ii. c. xviii. s. 2) most truly, “ Qui autem eiterni 
babendi sint, ita dote exposmt Yiij^us ut nemo jurisconsultorom possit 
clarius: 

* Omnem equidem sceptiis tenram quae l^’a nostris 
Disddet, extemnm reor.’ — ^n. vii. 369, 370. 

(/) Vtdtel, liv. i. c. i. s. 4 : “ Toute nation qui se gouverne elle- 
mSme, sous quelque forme que ce soit, sans ddpendauce d’ancuu stranger, 
est un Etat souverain.” The words ''sans ddpendance” are, it will be 
seen, too lax. 

(s’) Judgment qf Justice Marshall, in the case of The Antdojpe, 
10 WheatorCt Ms^gorta, p. 66; Wheatm'a Hisl.ory of the Modem Law 
of NaHontf-g. 637. 

TOL. I. O 



82 


INTEKNATIOKAL LAW. 


" le plus piiissant royaume ” (A). Provided that the State 
possess a Gh)yemment capable of securing at home the ob- 
servance of rightful relations with other States, the demands 
of International Law are satisfied. 

LXIY. If the foregoing definition be considered in detail, 
it ^vill be found to exclude from the legal category of a State 
the following aggregates of individuals : (1.) All hordes or 
bands of men recently associated together, newly arrived at 
or occupying any previously uninhabited tract or country, 
though it may be possible that such horde or baud may, in 
course of time, change its character, and ripen into a body 
politic, and have a claim to be recognized as such. Est 
“autem civitas,” Grotius says (t), "emtus perfectus libc- 
rorum hominum, juris fruendi et communis utilitatis 
“ causa sociatus ; ” and in another place, defining the cha- 
racter of sovereignty, “ Summa autem ilia dicitur (i.e. 
“potestas civUis) cujus actus alterius juri non subsunt, 
*^ita ut alterius voluntatis humanic arbitrio initi possint 

reddi summa: potestatis subjectum commune cst 

"civitas quam perfectum coetum esse supra diximus” (j). 
(2.) All migratory hordes not occupying a fixed or certain seat, 
and all associations of men united for the accomplishment 
of immoral ends {sceleru causa), such as piratical hordes, 
although they may have a fixed abode, and call themselves 
by the name of States. The Malay and Sooloo pirates of 
Borneo and the Eastern Archipelago furnish an example of 
such societies (A). " Fopulus autem,” Cicero says, in a 
definition copied by most jurists, “ non omnis hominum coc- 
*H\is,quoquo modo congregatus, sed coctus multitudinis^'wm 


(A) Vnttd, R-iUm. s. 18, Egaliti dea Nations ; and B. 19, " Par une 
suite n^cessaire de cette ^litd, ce qui est permis & une nation Test 
aussi & toute autre, et ce qui n’est pas pemis k IHme, n’est pas non plus 
i I’aatre.” 

(0 Be J. B. et P. lib. i. c. i. s. 14. (j) Ih. c. in. s. 7. 

(A) Serhaaaan Pitatea, 2 W. Bob. Adm. ‘Btp. pp. 364-868 ; The 
llleanon Piratea, Queen v. Bdcher, 6 Moore iViw Council jB^. pP* 
471-484. 



STATES. 


83 


** eonsenm et utilitatis commvnione sociatus” (Z); and in 
another plaoe^ “ Neque esset unum vinculum juris, nec con> 
« sensus ac societas coBtus, quod estpopulus” (m). 

LX V. With respect to societies united sccleris causa, the 
philosophers and jurists of antiquity are in perfect accordance 
with those of modem times. All agree to class such bodies 
amongst those of whose corporate existence the law takes 
no cognizance {qui civitatem non faciunt), and therefore as 
not entitled to International Bights either in peace or war. 
The question has generally been raised in time of war as 
to when a State should be considered a legitimate enemy 
(hostis), and when as a lawless freebooter (pirata, latro) (m). 
It is not, however, because a nation commits a piratical act, or 
is guilty of the violation of International Bights, that it is 
to be considered as wholly without the pale of a State. 
The ancient Greeks, we learn from Homer and Thucydides, 
practised rapine and piracy, and considered these exploits 
rather glorious than shameful. The Normans, the original 
discoverers of America, who swept the seas with their 
victorious galleys, and subverted and founded kingdoms by 
tlie prowess of their individual subjects, dealt, it is said, witli 
the ships which they encountered upon the high seas as their 
legitimate prey (o). The ancient Greeks and Normans, 
however, were not pirates in the legal sense of the term. 


(0 JDe Hep. lib. i. 26. (m) De lUp. Ub. iii. 31. 

(n) Grotim, de J. li. et P. lib. iii. c. iii. ss. 1,2: ** Distinctio populi, 
quMuvis bjuste agentis, a pimtis et latronibus.'’ 

(p) Tlmcyd. i. 6. : Ol "EXXfjwr rh iroXat .... erpefn-ovTo irpAs 
X^orei’oi' . . . . Kai ^p 7 ra{oi> .... ovk c^oitc; irc» al(r}(vvtiv rovrov rov 
fpyov, tfttpovrts bi rt koi io^s puXXoi'. Arid, Pol, v. 2, 3 ; Horn, Od. iii. 
73; ix. 262; Herod, ii. 162; iii. 30, 47 ; Thuajd. rt. 4; ApeiUod, i, 0, 18; 
Hx, V. 28 : “ Hand piocul freto Siculo a piratia Lipaiensium except!, 
devebnntur Liparos. Mos erat cirttatis, vdut publico latrocinio partam 
pnadam dirtdere.” 

Lord Qarendon's account of the Privateeis of Ostend, by whom he 
was taken prisoner, puts them pretty much upon the same level as the 
clasrical Freebooters. See Clarendon's Life (8vo. ed.), p. 208; “All 
the ships, though they had the King of Spain’s commission, were free- 
booters, ^longing to private owners, who observed no rules or laws of 
nations.'’ See, too, p. 212. 




84 


INTEBNATIONAL LAW. 


Their society was formed for civil and moral objects, not for 
plunder; and their acts of violence sprang from a confusion, 
incident to a barbarous age, as to the principles of right and 
wrong, and the laws of war and peace. 

Pompey Avas allowed the honour of a triumph for his 
victory over the Illyrians, Avho certainly exercised indis- 
criminate hostilities against the ships of all countries, but 
they Avere considered a and as having ‘*justum 

" tmperium.” Ho did not receive the same distinction for 
his destruction of the pirates who infested the Mediterranean: 

Tantum discrimen,” Grotius observes (;>), est inter popu- 
** lum quantumvis scelcratum, ct inter eos, qui, cum populus 
non sint, sceleris causa coeunt.” 

In the time of Charles the Second of England, Molloy 
wrote as follows: ^‘Pirates that have reduced themselves 
into a Government or State, as those of Alyiers, Halley, 
“ Tripoli, Tunis, and the like, some do conceive ought not 
** to obtain the rights and solemnities of war, as other towns 
or places; for though they acknowledge the supremacy of 
** the Porte, yet all the power of it cannot impose on them 
** more than their own wills voluntarily consent to.” He 
there mentions that Louis IX. treated them as a nest of 
wasj)s(<^), and unworthy of the rights of civilized Avar; 
“ notwithstanding,” he adds, ** this, Tunis and Tripoli, and 
“ their sister Algiers, do at this day (though nests of pirates) 
" obtain the rights of legation ; so that noAv (though indeed 
“ pirsites), yet having acquired tlie reputation of a Govern- 
“ment, they cannot properly be esteemed pirates, but 
“ enemies ”(r). Bynkershoek («), some years afterAvards, 
expressed yet more strongly the same opinion. And in the 

ip) lib. iii. c. iii. s. 2. 

(g) « Bugia et Algieri, infomi nidi di coisori.” — Taao. 

(r) Molloy, s. 4, p. 83. 

(<) Quod autem Albericus OentUis (Advoe. ISspan- 1. L c. zv.) aliiquo 
eos, qui Sarbari in Africa vocantur, jure piratarum consent, et eonim 
occa^Mtione dominium mutari uegant, nulla latione defend! potest— 
Algerienses, Tripolitani, Tunitani, Zaleenses jiiates non sunt, sed civitates, 
qute certam sedem atque ibi imperium habent, et quibuscum nunc pax 



BABBABT STATES. 


85 


year 1801, Lord Stowell fully adopted this position, and 
asserted that the African States had long ago acquired the 
character of established Governments, with whom we have 
regular treaties acknowledging and confirming to them the 
relations of legal communities (t); and he remarked that, 
although their notions of International justice differ from 
those which we entertain, we do not on that account venture 
to call in question their public acts — that is to say, that 
although they are perhaps on some points entitled to a 
relaxed application of the principles of International Law, 
derived exclusively from European custom, they are never- 
theless treated as having the rights and duties of States by 
the civilized world (w). 


est nunc bcllum, non secua ac cum aliis geutibus, qoique propterea 
cetei'orum priucipum jure esse vidontur.” — Bynkersltoek, Qtusst. J, P. 

b. i. c. 17. 

(#) The HdenOf 4 C, Rob. Adm. Rep. p. 6. Idfe of Sir Leoline Jenhins, 
vol. ii. p. 704. 

(tt) It is well known that, for some time, the lawfulness of Miy deal- 
ings, much more any treaty, iMstween the Christian and the Turk 
was denied. Alberbm Gmtilis discusses {De Jure Rdli, lib. iii. c. six.), 
“Si foedus recto contrahitur cum diversa) rcligionis hominibus, qiises- 
tio partira tbcologica, paitiui civilis.” He treats it, however, for the 
most part, thcolo}|^c.ally, and arrives at the conclusions that commerce 
is lawful between Christian aud Heathen States, but not in oUiouce 
against another Heathen State’, aud, a fortiori, not against another 
Chrietian State. Nevertheless, in a former chapter ho bad said, with a 
liberality scarcely known to the age in which he lived, “ Religionis jus 
hominibus cum hominibus proprie non cst: itaque noc jus Iseditur 
huminum ob diversam religionom; itaque, nec helium causa religionis. 
Heligio erga Deum est; jus est divinum, id est, inter Doum et 
hominem ; non est jus humanum, id est, inter hominem ct hominem : 
nihil i^tur qumritat homo violatom sibi ob aliam religionem,'’ — Lib. i. 

c. ix. See Inaugural Lecture on Alberious Gmtilis, by Professor Holland 
at Oxford, 1874. 

Orotius, de J. B. et P. lib. ii. c. xv. 8-12 : “Do foederibus frequens 
est qusestio, licitene ineantur cum his qui a vera religious alieni sunt : 
quse res in jaiv naturso dubitationem non habot ; nam id jus ita omnibus 
hominibus commune est, ut religionis discrimeii non admittat. Sod de 
jure diviuo queeritur.” 

Zord Coke said there were four kinds of Leagues ; Ist, Foedus Paeis', 
2nd, Foedus Conyratidatiom; 3rd, Foedus CbmiHutationis Merciutn. 



86 


INTERNATIONAL LAW. 


These observations were always applicable in some degree 
to the relations of the Ottoman Porte itself with other 
Governments. The Ottoman Empire extends, whether in 
Aaa, Africa, or Europe, over a vast variety of distinct 
nations and separate races. Hardly have those separate 
races which profess the Mahometan religion coalesced into 
one nation. But the Christian, whether of the Greek or 
the Koman Catholic Faith, has never entirely lost those 
distinctions of origin, manners, institutions, and, above all, 
of religion, which eternally separate him from the Turk. 
These distinctions have always been and must ahvays be 
indelible. The Mahometan and the Christian may live 
under the same government (;r), but they will remain distinct 
nations. The two streams are immiscible in their character, 
and will never “ flow the same.” 

It is unnecessary to consider the relations of the Algerine 
State with Europe. The gallant exploit of Lord Exmouth 
in 1815, and the bombardment of Algiers, compelled the 
Dey not only to set free his slaves and to abolish all Christian 
slavery, but also to promise a compliance with the usages of 
civilized States (y). Nevertheless, Algerine piracy was not 
entirely suppressed till 1830-1838, when the French took 
possession of Algiers and a portion of the adjoining territory. 
It is unnecessary to consider whether, in these circumstances, 
this act was entirely justifiable, whether a conquest of the 
territory was the only or right means of avenging an in- 
sult (r). The conquest has, I think, been of service to 
Christendom, and generally to the civilized world. It should 
be observed, however, that, in spite of the remonstrance of 
England, no attention whatever was paid by France to the 


Theae three might exist between a Ohiistian and an Infidel State, but 
the 4th, FwAm Mxdui Auxilii, could not.— httt, p. 166. 

TFar^s Law of Nations, ii. 321 (Of Treatieswith Pomfs not Omstsan), 

[x) See Lord Stowell’s Judgment in Tlw Indian Chiff, 3 Cl .Rtd. 
Adm, Itep, p, 29. 

(y) Ami. Rfff. 1810, p. 97. 




OTTOMAN EMPIRE. 


87 


rights and interests of the Porte as Suzerain of the Dey (a). 
The subsequent incorporation of all the Algerine territory 
in 1841-1847 was another act of conquest which the ne- 
cessity of maintaining the former conquest was alleged to 
justify (A). 

For some time after the conquest of Constantinople (1453) 
grave doubts were entertained by the nations of Christendom 
as to the lawfulness of any pacific intercourse with the 
Sultan. It was not till after the Treaty of Constantinople 
in 1720, that the Russian minister was permitted to reside 
at Constantinople; and direct relations between Roman 
Catholic Sovereigns and the Porte can scarcely be said to 
have an earlier date than the end of the eighteenth century (c). 
Even after the lapse of nearly four centuries, at the Congress 


(ff) M. (.Tuizot is silent on this point, and I cannot agree with the pro- 
position which precedes his historical reference to the fact of the capture 
of Algiei*s. The doctidne of national instincts of aggrandisement is, pace 
tanti viri, most imaound, and has been very mischievous to France. 

(6) Limniohilitd exWrieure n’est pas tonjours la condition ohligfe 
des Jitats, de grands iiitercts natioiiaux peuveiit conseillor et autoriser 
la guerre ; e’est une honnote erreur, innis ime orreur de croire que, pour 
etre juste, toute guerre doit etiti purement d<5fensive ; il y a eu et il y 
aura, entro les Etats divers, des conilits nnturels et des changemonts 
territoriaux legitimes; Ics instincts d’agraiidissemeut et de gloire ne 
sent pas, en tout cas, intenlits aux nations et a leurs cliefs. Quand le 
roi Charles X, en ISilO, declara la guerre au dey d*Alger, ce u’6tmt 
point la, de notre paii:, luie guerre defensive, et poiirtant celle-la <Stait 
liigitime; outre rallW)iit que nous avions (\ venger, nous donnions enfin 
satisfaction a un grand et legitime interet, franjais et europeen, en 
d»51ivrant la SKditerrainSo des pirates qui J’infestaient depuLs des 
siceles.'* — AUmoiree i7ou.r servir ATHisloire de man TVwqw, tome 
iv. pp. 0, 10. 

The same author writes (tome vii. ch. xli. pp. 125-6): Quant a 
la necessity do soumettre coiupletemont les Arabes et d'dtablir la domi- 
nation fran^aise dans toute rdtendue de TAlgdrie, jVltais do rovia du 
g^u^ud Bugeaud; la question nVtait plus, conime de 1830 a 1838, 
entre roccupation restreinte et I’occupation etendue; la situation de la 
France dans lo nord de TAfrique av.ait ebangd ; les faits s'etaient d^ve- 
lopp^s et avaient araen6 leurs consequences; la conquete effective de 
toute I’Algtfrie ^tait devenue la condition do notre ^tablissement A Alger 
et sur la cdte.” 

(o) 2 MiltitZf Mamkel des Consuls, p. 1671. 



88 


TNTEENATIONAL LAW. 


of Vienna, 1815, the Ottoman Empire was not represented, 
nor was it included in the provisions of positive public law 
contained in the Treaty which was the result of the Congress. 
Nevertheless, tlie International intercourse between the 


Sultan and other Powers was then, and had been for a long 
time, upon a much stricter footing of legality, than had sub- 
sisted between those Powers andthe African or Barbary States. 

Long before the Treaty of Vienna (1816) the Crescent 
had ceased to be an object of terror to Christendom ; and a 
principle of International Policy with respect to the Ottoman 
Power, directly the reverse of that which had formerly pre- 
vailed, had taken root in Eurojie — ^namely, the principle 
that the preservation and independence of the Ottoman Power 
was necessary for the safety of European Communities (</). 

LXVI. The Treaties affecting the relations of liussia 


with the Porte are the following 


Adriauoplo 

• • 

• 

• 

c 

. 1681 

Oarlowitz 

• • 

f 

• 

• 

. 16W) 

Constantinople « 

■ t 

f 

* 

• 

. 1700 

ConstantiDoplo . 

a • 

t 

• 

• 

. 1709 

Peace of Pruth 

e * 

t 

• 

• 

. 1711 

Constantinople. 

• • 

• 

• 

e 

. 1712 

Adrianople 

• t 

• 

« 

t 

. 1713 

Constantinople. 

• • 

• 

• 

• 

. 1720 

(By this treaty a Russian Minister 
mitted to reside at Constantinople.) 

was per* 

Behjrade . 

« • 

» 

• 


. 1739 

Kaynardgi 

% t 

« 

■ 


. 1774 

Explained 

• • 

• 

« 


. 1779 

Constantinople. 

• • 

• 

• 


1788-4 

Szistowe, Qallacz, Jassy 

• 

• 


1700-1-2 

Constantinople, 

• e 

c 

• 


. 1809 

Bucharest 

• • 

■ 

• 


. 1812 

Ackerman 

• • 

s 

• 


. 1826 

Adriampk • 

« • 

• 

• 


. 1829 

TJnkiar Skelesei 

• « 

• 

• 


. ia33 

London . 

• • 

• 

• 


. 1840 

Dardanelles • 

• • 




. 1841 


((2) The question of the religious Protectorate claimed by Ohristian 
Powers with respect to the Ghrielian subjects of the Sultan, both in 
Europe and will be discussed hereafter. 

Vide ante, ch. w. Tbbaitxs. 



THE PORTE. 


89 


Balta Liiufm 1846 

Balta Liman 1849 

The Treaty of Son Stefano as modified by Treaty 

of Berlin 1878 

The definitive Treaty of February . . . 1879 

LXVII. But the general Treaties between the Ottoman 
Forte and the Buropcan States appear to be best Ranged 
as follows : — 

1. From the conquest of Constantinople to the Treaty of Oarlowitz, 1609. 

2. From the Treaty of Carlowitz, 1609, to the Treaty of Belgrade, 1730. 

3. From the Treaty of Belgrade, 1739, to the Treaty of Bucharest, 1812. 

4. From the Treaty of Bucharest, 1812, to the Treaty of the Dardanelles 

in 1841. 

6. From the Treaty of the Dardanelles, 1841, to the Treaty of Paris in 
1850. 

6. The Treaty of Paris, 1856. 

7. From the Treaty of Paris, 1866, to the Treaty of London, 1871. 

8. From the Treaty of London, 1871, to the Treaty of Berlin, 1878. 

LX VIII. Bythe Treaty of Vienna in 1731 Great Britain 
made common cause with Austria against every enemy but 
the Turk (c). 

The Peace of Szistowe (1791), between Austria and the 
Porte, and the Peace of Jassy (1792), between Russia and 
the Porte, were concluded under the mediation of the triple 
alliance of Great Britain, Prussia, and Holland. 

In 1798, when Napoleon invaded Egypt, Russia and the 
Porte concluded an alliance confirming the Treaty of Jassy, 
and mutually guaranteeing the integrity of their dominions. 
To this Treaty Great Britain acceded in 1799 : it expired 
in 1806, and was renewed in 1809 by the Treaty of Con- 
stantinople, by the eleventh article of which Great Britain 
acknowledged that the strait of the Dardanelles was mare 
clausum under the dominion of the Porte. 

The Treaty of Bucharest, in 1812, put an end to the hosti- 
lities which had raged between Russia and the Forte since 
1 809. This Treaty greatly advanced the boundary of Russia. 


(e) MiMyf DroU^Hic tie rJShrcfM, ii. 226, 



90 


INTEIINATIONAL LAW. 


It contained stipulations confirming those of former Treaties 
in favour of the national privileges of Moldavia and Wallachia. 
and it contained some conditions in favour of the Christian 
Servians, which, in 1813, were violated with circumstances 
of great barbarity ; but the Servians applied in vain to the 
Congress of Vienna for mediation or succour. 

In 1819 the Porte recognized the Protectorate of Great 
Britain over the Ionian Islands (/). 

In 1828 the Great Powers interfered with the Porte on 

(/) The subsequent aiuTendor of this Protectorate in 180.3 is considered 
in the next cliapUn-. Martens^ Nom. Ilec, de TraiteSy xiii. (6 Supp.) 
380. The Treaty containing this recognition sets forth the titles of tlie 
Sultan, and the stylo of tlie Porte’s negotiations with Ohristiaii States 
“ Nons, par la grace du souverain maitre des empires et du fondateiir 
immuabhj de ledilice solido du calilat, par l*influerice inervoilleuso du 
modele des saints, du soleD des deux niondes, notre grand propheto 
Mahomet Mustapba, ainsi que par la coop($ration de ses disciples et 
succosseurs, et de toute la suite des saints, sultan, fils do sultan, em- 
pereur, fils d’empei-our, Mahmoud-Haii, vainqueur, fils d^Ahniod-Ilaiij 
vainqueur, dont lea nobles diplomes sent decori^s du titro souverain de 
sultan des deux lit^miapheres ; dont les ordonnances portent le noin 
dclatant dVnnpereur dos deux mors, et dont lea devoirs attacln5s a notre 
dignite imp&iale consistent dans radministratioii dela justice, lessoina 
d’un bon gouverneinent, et rassurauce do la tranquillity de nos ])euple8 ; 
seigneur ct gardieu des plus nobles villes du inonde, vers Icsqnelles se 
dirigeiit les veeux de tons les peuples, des deuxsaintes villes de la Mecque 
et de Mydine, du sanctuaire intilrieur du pays saint ; calife supreme des 
contrdes et provinces situees dans TAnatolie et la Eoinylie, sur la mer 
Noire et sur la mer Blanche, dans 1’ Arable ct la Chaldee ; eufin, glorieiix 
souverain de nombreuses forteresses, chateaux, places et villes, nous 
dydavons : — 

'' Que, vu la parfaite union et rdternelle ainitiy qui regnent entre 
notre Sublime Porte, d’oteniolle duroe, et le plus gloiieux de tons les 
gniiids princes qui croient en Josus-Christ, le modele de tous les per- 
sonnages d’un rang elcve ds la nation du Mmicy le mddiateur des 
interets poUtiques des peuples, revetu des oimemens de la majesty et de 
la gloire, et couvert des marques do la gmiideur et de la eflybrity, 
sa Majesty notre trcs-estimable, ancieii, intime, sincem, et constant 
ami, le roi (padischab) des royaumes unis d^Angleterre, d’Ecosso, et 
dTrlande, et d’une grande partie dos pays qui en dependent, George III 
(dont la fin puisse 6tr6 heureuse !), 

*^L'une et Pautre cour ont le dysir et rintention la plus sincere 
d’afiermir les bases de leur amitid, et de resserrer de plus en plus les 
liens de la bonne intelligence et de I’intimity qm les unit.** 



THE POETE. 


91 


behalf of the Greeks, whose independence they established 
after the battle of Navarino. 

In 1829 the Treaty of Adrianople was concluded between 
Russia and the Porte, by which the power of the former was 
much increased, especially with regard to the mouths of the 
Danube, in a manner scarcely consistent with the Public Law 
of Europe {g). In 1833, the Treaty of Unkiar Skelessi was 
concluded between Russia and the Porte, the avowed object 
of which was to protect the Porte against the rebellion of the 
Pacha of Egypt. The casus feederis contemplated by this 
Treaty having arisen, the other European Powers interposed, 
on the double ground of protecting the Porte against Egypt, 
and of preventing the protectorate of the Porte from being 
exclusively vested in and exercised by Russia. 

A Convention between all the European Powers, except 
France, took place in London, July 15, 1840, for the pacifi- 
cation of the East, to which the Porte also was a party. 
The maintenance of the integrity and independence of the 
Ottoman Empire as a security for the Peace of Europe was 
the avowed principle of this Convention. 

The language of the preamble of the Treaty is as follows : 

“ In the name of the most merciful God. 

“ His Highness the Sultan having addressed himself to 
“ their Majesties the Queen of the United Kingdom of Great 
“ Britain and Ireland, the Emperor of Austria, King of 
“ Hungary and Bohemia, the King of Prussia, and the 
“ Emperor of All the Russias, to ask their support and assist- 
** ance in the difiSculties in which he finds himself placed by 
“ reason of the hostile proceedings of Mehemet Ali, Pacha 
“of Egypt;— difficulties which threaten with danger the 
“ integrity of the Ottoman Empire, and the independence of 
“ the Sultan’s throne ; their said Majesties, moved by the 
“sincere friendship which subsists between them and the 
“ Sultan ; animated by the desire of maintaining the integrity 
“ and independence of the Ottoman Empire as a security for 


(jr) VidejuKt, et vide Cdvo, Drmt Int. voL i. pp. 3.37-8. 



92 INTERNATIONAL LAW. 

" the peace of Europe ; faithful to the engagement which they 
“ contracted by the collective note presented to the Porte by 
“their representatives at Constantinople) on the 27th of 
“ J uly, 1839 : and desirous, moreover, to prevent the effusion 
“ of blood, which would be occasioned by a continuance of 
“ the hostilities which have recently broken out in Syria 
“ between the authorities of the Pacha of Egypt and the 
“ subjects of the Sultan ; their said Majesties and his 
“ Highness the Sultan have resolved, for the aforesaid pur- 
“ poses, to conclude together a Convention ” (A). 

By the Treaty of the Dardanelles (July 10th, 1841) the 
five great European Powers admitted the exclusive authority 
of the Porte over these straits, and incorporated this principle 
of Law into the written Law {jus pacticium) of Europe (i). 
This principle has been preserved by the recent Treaty of 
Berlin, 1878. 

The Treaty of Paris, 1856 (as has been mentioned in a 
former chapter), placed the independence and integrity of 
the Ottoman Empire under the guarantee of England, 
Austria, and France. But Russia in 1871 practically set at 
nought the Treaty of Paris, which was, however, iu some 
degree patched up and restored by the Treaty of London, 
1871 ; the Protocol to which stated, that tlic Powcm 
recognised “ that it is an essential principle of the Law of 
“ Nations that none of tlicm can liberate itself from the 
“engagements of a Treaty, nor modify the stipulations 
“ thereof, unless with the consent of the contracting parties 
“ by means of an amicable understanding.” 

Some of these Treaties, and the events which led to them, 
will be noticed more at length hereafter. But it is clear, 
even from this cursory notice, that the Porte must now be 
considered as subject, with only such exceptions as the 
reason of the thing may dictate, not only to the principles of 
general International Law, but to the particular provisions 


(A) Jlertdet's Treaties, vol. v. p. 644. 
(t) Wheaton’s Hia. 289, 666-686. 



TREATIES. 


93 


of the European Code (A). The Hatti^Sherif of 1856 rela- 
tive to the Hierarchy of the Greek Church and non-Mus- 
sulman subjects generally, will be considered hereafter (1). 
The peculiar relations which subsist between the Porte and 
Egypt will be considered in the next chapter. 


(it) Speech of tlie Earl of Clarendon {Secretary of State for Foreign 
Affairs)^ in the House of Lords, April 1868, on the interference of the 
Continental Powera in the relations siihsisting between the Porte and 
Montenegio. See also the Debates in both Ilouses of Parliament 
upon the subject of Russian intervention jn Turkey on the ground of 
an alleged Religious Protectorate of the Greek Church.— Pari, 
I)ek 1853 ; jEocA, iv. 340. Vide chapter on Intervention.” I say 
this non obstante the opinion expressed ■ by M. Guizot, Mem, vi. ch. 
xxxvii. pp. 267'-8. 

(/) Ann, Reg, 1856 ; State Papers^ 337. Vide 2 ^ostt ‘‘ Intervention on 
Religious Grounds,” §. ccccix. 



94 


INTEBNATIONAL LAW, 


CHAPTER II. 

DIFFERENT KINDS OP STATES. 

LXIX. Having copsidered the general attributes and 
characteristics required by International Law for the consti- 
tution of a State, it becomes necessary to apply these tests to 
the different forms of States which arc found to exist, in order 
to fix the position of each in the Commonwealth of Nations. 
This part of the subject appears to admit of the following 
principal division : — 

First. One or more States under One Sovereign. 

Secondly. Several States under a Federal Union. 

LXX. I. — As to one or more States under one Sovereign. 
It is proposed to consider this first branch of the principal 
division under the following heads ; — 

1. Single States, under one Sovereign. 

2. Several States perpetually united {reali unione) under 
one Sovereign. 

3. The peculiar case of Poland. 

4. Several States temporarily united under one Sovereign 
{personali unione). 

5. A State under the Protectorate of another, or of others, 
but retaining its International personality. 

6. A State under such Protectorate so as to have forfeited 
its International personality. — The Ionian Islands. 

7. The European Free Towns or Republics. 

8. The peculiar case of Belgium. 

9. The peculiar case of Greece. 

10. States standing in a Feudal relation to other States. — 
The Turkish Provinces. 

11. The peculiar case of Egypt. 



WPPBBENT KINDS OP STATES. 


93 


LXXI. First— With respect to a Single State, under One 
Sovereign, like Spain or Portugal as at present constituted, 
no doubt can be raised as to such a State being the proper 
subject of International Law. 

liXXII. Secondly. — Where several States, perpetually 
under one Sovereign {reali have retained certain (a) 

rights and privileges as far as their International Relations 
are concerned, but have lost all separate and distinct exist- 
ence as far as their External Relations are concerned, they are 
not, properly and strictly speaking, subjects of International 
Law — at least, they can only be so mediately and indirectly, 
and not directly and immediately. For instance, a State 
which entered into any negotiations with Hungary or Ire- 
land as independent States (even while they possessed a 
separate legislature) would have been guilty of a gross 
violation of International Law towards Austria or Great 
Britain. 

L XXIII. Thirdly. — Tlie particular State of Poland re- 
quires a distinct and separate consideration. The various par- 
titions of that unhappy country are not now under discussion; 
it is with the condition of Poland under the Treaty of Vienna, 
aud the Russian manifesto of 1832, that we are at present con- 
cerned. The union established between Russia and Poland 
by the Congress of Vienna was of a wholly anomalous 
kind. By the first act of that Congress the Duchy of Warsaw, 
with the exception of certain districts, was united to the 
Russian Empire, and was irrevocably bound by its constitu- 
tion to belong to the Emperor of Russia, and his heirs in all 

(d) OrotiuB, de J, S, et P, lib. i. c. iii. a. 21 ; lib. ii. c. u.‘ a. 9 : — 
* Quod si quando uniantur duo popoli non amittentur jina sed coni- 

municabuntur. Idemque censendum eat do xoimia quso non 

feeders, aut eo duutaxat quod regem communem babeant, sed veia uni- 
tato junguntur.” 

Vattel, L liv. i. c. 1. 

Oppenhdm, SyStm dea FdlkerrecJds, zweiter Theil,Kap. vi. a. 4. 

Wheaton, JElSmenta du Droit intemational, p. 20. 

Slvber, EurcpSitchea VolkerredU (ed. 1861), erster Thdl, Kap. i. 
a* 27. 

Seffter, JEurop. VSGurrecht, a. 20, 



96 


INTERNATIONAL LAW. 


perpetuity. The Emperor undertook to confer on this State, 
which was to be under a separate and distinct government, 
such powers of internal administration as he might think fit. 
The Emperor was to take the title of King of Poland. The 
Poles, whether subjects of Austria, Prussia, or Kussia, were to 
obtain representative institutions, regulated according to the 
manner which might seem expedient to the respective Govern- 
ments. In conformity with these stipulations, the Emperor 
Alexander granted a constitutional charter to the Kingdom 
of Poland, November 15 (27), 1816. This charter declared 
that The Kingdtm of Poland ivas united to Russia by its 
constitution — that the sovereign authority in Poland was to 
be exercised in conformity therewith — that the coronation 
of the King of Poland was to take place in the Polish 
capital, where he was bound to take an oath to observe the 
charter. Poland was to have a perpetual representation, 
composed of the King and the tsvo chambers forming the 
Diet, in which body the power of legislation and taxation 
was to be vested. A distinct Polish army, coinage, military 
orders, were to be preserved in the kingdom. But in 1832, 
the Emperor Nicholas established ivhat was called an 
organic statute for Poland, the principal features of which 
were, that the Kingdom of Poland was henceforth to be 
perpetually united to, and form an integral part of, the 
Russian Empire, the Polish Diet was to be abolished ; the 
Polish army absorbed into the Russian ; and the administra- 
tion of Poland carried on under a Russian Council of State, 
called the Section for the Offices of Poland. The Govern- 
ments of England and France protested against this act as a 
violation of the spirit, if not of the letter, of the Treaty of 
Vienna {b). It seems, however, impossible at the present time 
to consider Poland as retaining any of those characteristics 
which would entitle it to be considered as an independent 


(6) Annuc^e historifitef 1832. Documens /nttorigueg, p. 184. Whtor 
ton’s Bistory, 483, 441. Wheaton, Elhn. du Droit Inter, i. pp. 63-66. 
Bansard^s Parliammtary Dduttes, vol. xiii. p. 1116. 



DIFFBBENT KINDS OF STATES. 


97 


kingdom^ according to the principles of International 
Law(c). 

LXXrV. Fourthly. — In the cases which have been men- 
tioned the several States are rea/ly and perpetually {unione 
reali) united under one Sovereign ; but there may be cases 
in which the union is of a personal character {unio 
personalis), depending upon the continuance of a certain 
dynasty (d). 

Hanover and Great Britain, while under the same crown, 
Prussia and NeuchS^tel in Switzerland, at the time when 
Vattel wrote, afforded examples of this kind (e). Norway and 
Sweden, since the Treaty of Vienna, have presented a similar 
instance. In these cases the individuality of the State as 
to her external relations remains in abeyance, and is not lost, 
though it be merged in the union ; and therefore, emerging 


(r) In 1865 this question was again brought before the English 
Parliament. Ijord Palmerston, then Prime Minister, admitted that Bussia 
had not executed faithfully her Ti-eaty engagements to Poland, said that 
diplomatic action had beeu tried in vain, that war was inexpedient, aud 
with respect to the pro^Msal that the payment of the annual sum on 
account of the Busso-Dutch loan should suspended, observed, “That 
engagement having no reference whatever to Poland, to say that, because 
Bustia had misconducted herself in Poland, and broken her engagement 
under the Treaty of June 1816, we were therefore to break our engage- 
ments founded on a diflerent treaty, and relating to a diiferent transac- 
tion, was a lame and impotent conclusion. Asiy such course the House 
and the Government should be ashamed even to contemplate adopting, 
as it would be equally unworthy of Parliament and unbecoming to the 
country.” — Ami. Beg, 1866, p. 70. 

See also vol. ii. s. xc. i%c. of these Commentaries. 

(d) “Bursum accidit, ut.plurium ppulorum idem sit caput, qui 
tnmen populi singuli perfectmu coetum constituunt; neque euim ut in 
naturali corpora non potest caput unum esse plutium corporum, ita in 
moral! quoquo corpora; nam ibi eodom persona, diversa ratione consi- 
derata, caput potest esse plniium ac distinctorum corporum. Gujus rei 
certum indicium esse potrat, quod extincta dorao reg;natiiee impeiium 
ad quemquQ populum seorsim revmrtitur.” — Orat,, de J. B. it P. lib. i. 
c. iii. 8. 7, S 2. 

(e) The King of Prussia by Treaty (1867) renounced his right of 
sovereignty in the Principality of N$achd>tel and the Gomtd of Valengin. 
Neuch&tel became a member of the Helvetic Confederation. — Ann, Beg, 
1867, pp. 232-437. 

TOli, I, H 



98 


INTERNATIONAL LAW. 


when that union is dissolved, she is entitled to the rank and 
consideration of an independent kingdom. 

LXXV. Fifthly. — A State may place itself under the 
protection of another State with or without losing its Inter- 
national existence. It may well be, as Grotius, translating 
Appian, says, “ Sub patroeinio non sub ditione ” (/ ) ; or, 
according to his own expression in another part of his work, 
it may he **Cum imminutione imperii or “Sine imminu- 
“ Hone imperii ” (ff). 

The proper and strict test to apply will be the capacity 
of the protected State to negotiate, to make peace or war 
with other States, irrespectively of the will of its protector. 
If it retain that capacity, whatever may be the influence of 
the protector, the protected State must be considered as an 
independent member of the European commonwealth. 

It must, however, retain this capacity de facto as well as 
de jure {h)\ and it is necessary to make this observation, 
because, at no distant period of history, an attempt was made 
to evade the application of this principle of law, by retaining 
theoretically the name when the substance was practically and 
notoriously lost. The Swiss Cantons and the States forming 
the Confederation of the Bhinc, to say nothing of other 
countries, were nominally free and independent when their 
armies were under F rench officers, their cabinets under French 
ministers, and their whole constitution entirely subject and 
subservient to their French ruler and protector Napoleon. 
They were, therefore, justly considered by Inteniational 
Law as provinces of France, and were denied the rights of 
independent States during the continuance of this state of 

(/) lib. i. c. m. 8. 21, § 3. 

(g) lib. ii. c. xv. s. 7, § 1. 

(i) “ Interim venim est accidero plemmque, ut qiu superior ost in 
feedere, si is potentia raultum antecellat, paulatim imperium proprie 
dictum usurpet : prtiesertim si foedus perpetuum sit, et cum jure prmsidia 

induceadi in oppida, &c Htec cum fiunt, et ita fiunt ut potentia 

in jus traneeat, qua de re alibi erit disputandi locus, tunc aut qui socii 
fuerant flunt subditi, aut certe partitio iit summi imperii, qualem acci- 
dere posse supra dijdmu8.’’~(?ro<»f«, lib. i. c. iii. s. 21, pp. 126, 127. 



DIFFERENT KINDS OF STATES. 


99 


subserviency. It was on this ground that the capture of the 
Danish fleet, in 1806, by Great Britain was justified— namely, 
that it was de facto a fleet in the power and under the orders 
of France. 

On the other hand(*), while this capacity remains, no 
mere inequality of alliance is destructive of the personality 
(^persona standi) of a State among nations. The parties to 
such alliance are not the less sovereign because they have 
consented of their own accord to disadvantageous terms in 
their Treaties with other nations; it belongs, as Grotius 
says, to unequal alliances, “ Ut potentiori plus honoris, in- 
“ finniori plus auxilii deferatur ” (/) ; or because they rely 
upon the arm of those nations for succour and defence when 
attacked: “ Si ergo populus tali foedere obligatus liber 
manet, si alterius potestati subjectus non est, sequitur ut 
summum imperium retineat. Atque idem de rege pro- 
imnciandum, est enim popuU liberi, et regis qui vere rex 
“ sit, eadem ratio ” {k). 


(i) “ Prmdut, Libra Epidolarum viii. Non dubito, quin fisderati ot 
liberi nobis exteroi non slut, Deque inter nos atque eos postliminium sit : 
Gtenim quid inter nos atque eos postliniinio opus est, quuin et illi apud 
nos et libertatem suaiu, et dominium rerum suarum teque atque apud se 
rerineant, et oadeni nobis apud eos continuant P ” Sec. 1. Liber autem 
populus est is, qui nullius alterius populi potestati est subjectus, sive qui 
fesderatus est, item sive aequo foedere in amicitiam venit, sive foedere 
comprehensum est, vi it popidus dteriug popidi nugestatem comiter con- 
termret) hoc enim adjicitur, ut intelligatur, olternm non esse liberum; 
et quemadmodum clieutes nostros intelligimus liberos esse, etiam si neque 
aoctoritate, neque dignitate, neque jure omni nobis pares sunt, sic eos, qui 
majestatem nostrum comiter conseroare debewl, liberos esse intelligendum 
est.” — Dig, xlix. tit. xv. 

De Captims et de PostUmmio, ^c. OroHus incorporates this I'easoning 
into International Law. — De J. B. et P. lib. i, c. iii. 21, 22. 

See the reason of the exception in the case of the Santa Anna, Edwards 
Adm, 181, 

( 3 ) QrcdmSfVbi supra. 

{k) Orotius, ubi supra. 

AjdherMs Speech to the Roman Senate describes a protected kingdom 
in these words: ''P. 0. Micipsa pater mens morions mihi prtecepit, uti 
regni Numi^ tantummodo procurationem existimarem meam ; ceterum 
jus et imperium penes res em : ' simul eniterer domi militissque quam 



100 


INTEENATIONAL LAW. 


LXXVI. Sixthly. — States »vhich cannot stand this test, 
which cannot negotiate, nor declare peace or war with other 
countries without the consent of their protector, are only 
mediately and in a subordinate degree considered as subjects 
of International Law (/). In war they share the fortunes 
of their protectors (w) ; but they are for certain purposes, and 
under certain limitations, dealt with as independent moral 
persons, especially in questions of Comity, touching the per- 
sons and property of their own subjects in a foreign country, 
or of strangers in their own territory, and with respect to 
other matters of the like kind. 

States of this description are sometimes, but with admitted 
impropriety of expression, called semi-sovereign {demi-souve- 
rain — halhsouverdti). Such appears to have been the lord- 
ship of Kniphausen, in North Germany, which exercised 
independent jurisdiction over the inhabitants of a territory 
enjoying maritime traffic and a(») flag of its own, under the 
protection of the German Confederation and the Suzerainete 
{Hoheit, Oberkoheit) of Oldenburg (o). Such is or was the 
Eepublic of Poglizza(^>), in Dalmatia, under the protection 
of Austria. Such were the provinces Moldavia and Wal- 
lachia(^), and the hereditary Principality of Servia, under 
the Suzerainete of Turkey. The present international status 
of these provinces will be considered hereafter. The former 
status of Montenegro is more doubtful. The little State of 

mazimo luui ease popub JRoxnauo. Vos mihi c<^r>><^toruiu, vos in locum 
affiniom ducerem: si ea femasem, in veatra amidtk exercitum, diyit^, 
munimenta regm me haHtnrum.’ — iSiail/usr, J7f^um 14. : 

(l) Though Qrotim (c. xxi. p. 118) would seem to think oiWwisei 
but Barbeyrac's note (vol. i. 161, 26) supports the view in the text. 

(m) Vattel, 1. xti. ; Wdff, c. iv. 437-439. 

(m) Under this ancient German Empire, there were a variety of petty 
Principalities exercising a territorial supremacy nerer- 

theleaa, subject to the legislative and judicial authority of the Emperor 
and the Empire. These were absorbed in the German Oonfederation, 
except Kniphausen, 

ip) H^erSf das EuropdUche Volkerrecht, 1. Bucb, xxxviii. s. 19. 

(p) Martens, Droit des Qens, liv. i. c. ii, s. 20. 

(y) Wheaton, EUm, de Dr, Int. i. 48, 



IONIAN ISLANDS. 


lOl 


Monaco, from 1641 till the Revoluliou, was under the Pro- 
tectorate of France ; under which it was replaced by the 
Treaty of Paris in 1814; and, by a Treaty in 1816, it was 
transferred to the Protectorate of Sardinia. In 1860 Nice 
was given up by Italy to France, and in the next year the 
greater part of Monaco was ceded to that country, the 
remaining fragment being placed under its protection. 

LXXVII. The Ionian Islands, placed by the Treaty of 
Paris under the Protection of Great Britain, are cited by 
Kluber as a perfect specimen of a semi-sovereign State (r) ; 
and' therefore their constitution, although existing no longer, 
is given here : 

By a Convention between Great Britain and Austria, and 
Russia and Prussia, signed at Paris, November 6, 1815, it 
is provided that — 

*‘I. The Islands of Corfu, Ccphalonia, Zante, Santa 
“ Maura, Ithaca, Cerigo, and Paxo, with their dependencies, 
“such as they are described in the Treaty betrveen his 
“ Majesty the Emperor of All the Russias and the Ottoman 
“ Porte, of March 21, 1800, shall form a single, free, and 
“ independent State, under the denomination of the United 
“ States of the Ionian Islands. 

“ II. This State shall be placed under the immediate and 
“ exclusive protectwn of his Majesty the King of the United 
“Kingdom of Great Britain and Ireland, his heirs and 
“ successors. The other contracting Powers do consequently 
“ renounce every right or particular pretension which they 
“might ^ve formc^ m formally 

“ III. The United States of the ioida^ 

“ the approbation of the protecting Power, regulate 
“ internal organization ; and, in order to give to all the parts 
“ of this organization the necessary consistency and action, his 

(r) ‘'Eiuen wabren lialhsouveriinen Staat bilden, seit 1815, die 
Vereinigten Staaten der lonischen Insela wegen der ScbutJj- and 
SoaTerauitats-Bechte, welcbe Grossbritarmien uber sie auszuuben bat.’ 
—KHubeTf § .*18. 




102 


INTERNATIONAL LAW. 


** Britannic Majesty will employ a particular solicitude with 
regard to the legislation and the general administration of 
** those States. His Majesty will therefore appoint a Lord 
** High Commissioner to reside there, invested with all the 
‘‘ necessary power and authorities for this pitrpose. 

“ IV. In order to carry into execution without delay the 
stipulations mentioned in the articles preceding, and to 
“ ground the political re-organization of the United Ionian 
“ States upon that organization which is actually in force, the 
“ Lord High Gominissiouer of the protecting Power shall 
“ regulate the forms of convocation of a legislative assembly, 
“ of which he shall direct the proceedings, in order to di’aw 
“ up a new Constitutional Charter for the States, which his 
“ Majesty the King of the United Kingdom of Great Britain 
“ and Ireland shall be requested to ratify. 

Until such Constitutional Charter shall have been so 
** drawn up and duly ratified, the existing Constitutions shall 
** remain in force in the different Islands, and no alteration 
shall be made in them, except by his Britannic Majesty 
“ in Council. 

Y. In order to ensure, without restriction, to the in- 
“ habitants of the United States of the Ionian Islands the 
“ advantages resulting from the high protection under which 
these States are placed, as well as for the exercise of the 
“ rights inherent in the said protection, his Britannic Majesty 
“ shall have the right to occupy the fortresses and places of 
“ those States, and to maintain garrisons in the same. The 
military force of the said United States shall also be under 
“ the orders of the Commander-in-Chief of the troops of his 
** Britannic Majesty. 

** VI. His Britannic Majesty consents that a particular 
“ Convention with the Government of the said United States 
shall regulate, according to the revenues of tliose States, 
“ everything which may relate to the maintenance of the 
“ fortresses already existing, as well as to the subsistence and 
payment of the British garrisons, and to the number of men 
“ of which they shall be composed in time of peace. 



IONIAN ISLANDS. 


10.1 


‘*The same Convention shall likewise fix the relations 
« which are to exist between the said armed force and the 
" Ionian Government. 

“ VII. The trading flag of the United States of the Ionian 
“ Islands shall be acknowledged by all the contracting Parties 
“ as the flag of a free and independent State. It shall carry 
** with the colours^ and above the armorial bearings tliereon 
“ displayed before the year 1807, such other as his Britannic 
“ Majesty may think proper to grant, as a mark of the protec- 
“ tion under which the said United Ionian States are placed ; 
“ and for the more effectual furtherance of this protection, all 
“ the ports and harbours of the said States are hereby declared 
“ to be, wtli respect to honorary and military rights, within 
“ British jurisdiction. The tM)mmercc between the United 
** Ionian States and the dominions of his Imperial and Hoyal 
“ Apostolic Majesty shall enjoy the same advantages and 
“ facilities as that of Great Britain with the said United 
“ States. None but commercial agents^ or Consuls, charged 
“ solely with the carrying on commercial relations, and subject 
“ to the regulations to which commercial agents or Consuls 
“ arc subject in other independent States, shall be accredited 
“ to tlie United States of the Ionian Islands ” (s). 

By the Constitutional Charter of the United States of the 
Ionian Islands, as agreed on and passed unanimously by the 
L^slative Assembly on May 2, 1817, it is provided as 
follows (s. 4) as to their Foreign Belations : — 

“ I. Whereas, in the latter part of the seventh article of 
“ the Treaty of Pai*is,it is agreed,* That no person, from any 
“ Power whatsoever, shall be admitted within these States, 
** posscssingor pretending to possess any powers beyond those 
‘* which are defined in the aforesaid article;’ it is hereby 
“ declared, that any person who shall assume to himself any 
“ authority as an t^ent for a foreign Power, except as therein 
“ directed, shall be amenable to be tried before the Supreme 


(«) ISxUiactod from IfcrtMg Treaties, vol. i. p. 47. 
Matiatts, Hrv, tie- Tr. N, It. ii. 003. 



10i4 


INlEB^TATIONAt LAW. 


" Council of Justice, and be liable, if found guilty, to punish- 
** ment, as in eases of high treason i^alnst the State. 

“ II. No native, or subject, of the United States of the 
** Ionian Islands shall be held competent to act as Consul or 
“ Vice-Consul for any foreign Power within the same. 

“ III. The Britbh Consuls, in all ports whatsoever, shall 
" be eonsidqr^^to be the Consuls and Vice-Consuls of the 
“ United the Ionian Islands, and the subjects of the 

" same shall Wentilled to their fullest protection. 

"IV. All applications necessary to be made by these 
" States to any foreign Power shall be transmitted by the 
" Senate to Ids Excellency the Lord High Commissioner of 
" the protecting Sovereign, who shall forward the same to the 
** Ambassador or Minister of the protecting Sovereign, resi- 
" dent at the court of the said foreign Power, for the pur- 
“ pose of submitting them in due form to the said Power. 

" V. The approval of the appointments of all foreign 
“ agents or Consuls in the United States of the Ionian Islands 
" shall be by the Senate, through the medium of his Iligh- 
" ness the President thereof, with the concurrence of his 
" Excellency the Lord High Connnissiouer of the protecting 

Sovereign. 

“ VI. With a view to ensure the most perfect protection 
" to the commerce of these Islands, every vessel, navigating 
" under the Ionian flag, shall be bound, before leaving the 
" port of the Ionian States to which she belongs, to pro- 
“ vide herself with a pass, signed by his Excellency the 
" Lord High Commissioner of the protecting Sovereign, 
" and no vessel sailing without such pass shall be considered 
" as navigating according to law. But it is reserved to his 
" Majesty the protecting Sovereign to decide how far it may 
" be necessary that, independent of such pass, they should 
" further be bound to supply themselves with Mediterranean 
" passes.” 

The sixth section relates to the National Colours and 
Armorial Bearings : — 

" I. The National Commercial Flag of the United States 



TOXIAVr iSLilNDS. 10^ 

“ of the Ionian Islands, as divccted by the seventbarticle of 
the Treaty of Paris, shall be the original flag of the States, 
vdth the addition of the British union, to be placed in the 
** upper comer next to the flagstaff. 

II. On usual days the British colours shall be hoisted 
** on all the forts within the United States of the Ionian 
** Islands ; but a standard shall be made, lig be hoisted on 
‘‘ days of public rejoicing and fcstivity>ii|^iiing to the 
model of the armorial bearings of the saidt^tcs. 

“III. The arms, or anuorial bearings, of the United 
“ States of the Ionian Islands shall hereafter consist of the 
“ British arms in the centre, surrounded by the anus of 
“ each of the Islands composing the said States. 

“ IV. The armorial bearings of each of the Islands shall 
“consist of the individual arms of the Island, and such 
“ emblem, denoting the sovci’eign protection, as may be 
“ deemed advisable.” 

In the seventh section arc the following General Clauses: — 
“ III. In the instance of all maritime transactions and 
“ the collection of the customs, it shall be competent for 
“ the proper authorities to employ either British or Ionian 
subjects.” 

“ V. A specific law shall settle the terms, time, and mode 
“ for the naturalization of forehjn snhjectx in the States ; but 
“ the subjects of the protecting Power shall, in all instances, 
“ be entitled to naturalization in half the time that is required 
“ for those of any foreign Power ; and a subject of the pro- 
“ tecting Power, or of any other Power, may be at once 
“ naturalized by a Bill to that effect, without reference to 
“ any fixed time of residence in these States, which shall be 
“ laid down in the law itself” (#). 

The Protectorate of Great Britain over the seven Ionian 
Islands was ratified by the Porte in 1819 («). 

{t) Extracted from Hertdet'e Treatm, vol. i. p. 6.3, 

(«) Martens, jV, B. {Sapfi.) v. 387. Acte de Katification de la Porte 
Ottouaue relativement k la cession des lies louiennes a la Qrande-Bre- 
tagne, et de Piuga k la Turqoie, du 24 aviil 1819. 



106 


INTERNATIONAL LAW. 


During the last Russian war with England an Ionian 
vessel was seized by a British cruiser, and brought into the 
Prize Court, where her condemnation was asked for. It 
was not denied that she was destined to a belligerent or 
Russian port. The learned judge (Dr. Lushington) said, — 
The vessel proceeded agmnst was an Ionian vessel, 
“ destined, for the purpose of the present inquiry, to Ta- 
ranges, a Russian port. The captors said that such a 
“ voyage by an Ionian ship subjected her to condemnation. 
“ The claimants said that neither by the law of nations, nor 
any other law, were they liable to condemnation ; that the 
" port of Tarangos was not blockaded ; that they did not 
carry contraband ; that the expedition in which they 
were engaged was lawful ; and that they were entitled to 
‘^restitution. He must now endeavour to set forth as 
“ clearly as he could the reasons and principles on which 
“ the prayers for condemnation and restitution were founded. 
“ The counsel for the captors alleged that all Ionian vessels 
“ were to be considered as British vessels ; that, as British 
“ vessels were prohibited from trading with Russia during 
“war, so, for the same reason, were Ionian vessels; in 
“ other words, that British and Ionian vessels were to be 
“ placed in the .same category ; that, as regarded a Power 
“ hostile to Great Britain, the lonians stood in the same 
“ position as British subje«!ts. If that proposition were true, 
“ it necessarily followed as a <;orollary fi'om it that all trade 
“ with the enemy of Great Britain not allowed to British 
“ subjects was prohibited to the inhabitants of the Ionian 
“ Islands. There Tvas no doubt that a British vessel could 
“ not trade with Tarangos ; therefore if British and Ionian 
“ vessels were in eadern conditione, this vessel could not 
“ lawfully j)rosecute her enterprise and must be condemned. 
“ The claimants denied all those propositions. They said 
“ they were not British subjects, that they were not at war 
“ with Russia, and had a right to carry on with Russia any 
“ trade that the subjects of a neutral nation could be law- 
“ fully engaged in,” 



IONIAN ISLANDS. l07 

The learned judge, after a careful examination of the facts 
and the law, concluded as follows : — 

Did the subjects of the Ionian States stand in eculem 
<< eoaditione ? It was admitted on all hands they were not 
“ British subjects in the proper sense of the term. They 
did not participate with British subjects in the advantages 
“ of commercial intercourse in virtue of the treaty. Were 
“ they to suffer die inconveniences, and have none of the 
“ benefits ? Did they owe any allegiance to the Crown of 
“ Great Bntain which they violated by such trade ? Perhaps 
" that was the nicest and most difficult point. Allegiance, 
in the proper sense of the term, undoubtedly they did not 
“ owe. A limited obedience, according to the treaty, they 
“ did owe, as a sort of equivalent for protection. There 
“ might be cases in which it would be competent to Great 
” Britain to declare that abstinence from trade with the 
“ enemy was due for such protection ; but was it to be in- 
“ ferred without such declaration ? He thought not. But, 
“ again, was that presumed illegality of trade a principle to 
“ be enforced beyond all precedent? On what ground was 
“ it to be based ? Not of advantage to the Ionian Islands, 
“ which had no interest in the quarrel. Without a possi- 
bility of advantage to themselves, they might be deprived 
“ of a lucrative trade, and that, too, without any formal act 
“ done by the protecting Power. He had mentioned some 
" of the reasons which had induced him to come to this cou- 
“ elusion ; but there were others. He would restore, because 
“ the property was not the property of allies in war ; for 
“ neither by the treaty nor by the law of nations could he 
inqme upon the subjects of the Ionian States that cha- 
racter. He would restore, because if Great Britain had 
‘ the right by treaty of declaring war between the Ionian 
“ States and Kussia, she had not done so ; because, in the 
“ absence of all such declaration or solemn act in whatever 
‘ form, he was of opinion tliat the Ionian subjects were not 
placed in a state of war ; because he held it to be the duty 
of every court professing to administer the law of nations to 



108 


IKTERNATIONAt LAW. 


“ carry into effect and operation the plain terms of a treaty, 
though the consequences might not have been foreseen ” (ar). 
This judgment was not appealed from. But the evil was 
remedied by taking the proper formal steps for prohibiting 
commerce between the Ionian Islands and Russia during 
the continuance of the war. This account of the peculiar 
stains of these Islands Avhile under the Protectorate of Great 
Britain, and the application of International Law to them, 
has seemed to me proper to be preserved in this work. But 
the recent cession of these Islands by Great Britain to the 
Kingdom of Greece has deprived the statement of the prac- 
tical importance which formerly attached to it. In December 
1862, after the abdication of King Otho, a memorandum from 
the British Government was delivered to the Provisional 
Government of Greece, in which were these passages ; — 

It is her Majesty’s earnest desire to contribute to the 
** w'elfare and prosperity of Greece. 

« The Treaties of 1827 and 1832 bear evidence of this 
** desire on the jjart of the British Crown. 

The Provisional Government of Greece declared, upon 
“ the withdrawal of King Otho from Greece, that their 
“ mission is to maintain for Greece constitutional monarchy, 
“ and the relations of peace with all other States, 

“ If the new assembly of the representatives of the Greek 
“ nation should prove faithful to this declaration, should 
“ maintain constitutional monarchy, and should refrain from 
“ all aggression against neighbouring States, and if they 
should choose a sovereign against whom no well-founded 
“ objection could be raised, her Majesty would see in this 
** wmrse of conduct a promise of future freedom and hapi»i- 
“ ness for Greece. In such a case, her Majesty, with a 
“ view to strengthen the Greek Monarchy, would be ready 
**to announce to the Senate and Representatives of the 
“ Ionian Islands her Majesty’s wish to see them united to 
the Monarchy of Greece, and to form with Greece one 

(x) The Ionian Ships ” Spinks’ Prize Cases, ie64-66, p. 183. See also 
1 Jur. N.8. p. 649, 



IONIAN ISLANDS, 


109 


united State ; and if this wish should be expressed also 
« by the Ionian Legislature, her Majesty would then take 
“steps with the concurrence of the Powers who were 
“ parties to the Treaty by which the seven Ionian Islands 
“ and their dependencies were placed as a separate State 
“ under the Protectorate of the British Crown.” 

The offer of Great Britain was received with much joy and 
gratitude by the lonians. Prince George of Denmark was 
elected King of Greece. 

A conference as to the cession of the Ionian Islands was 
holden in London on June 26, 1863, at which the Plenipo- 
tentiaries of Great Britain, France, and Russia were present. 
A protocol was drawn up which declared, — 

“(1) With regard to the guarantee of the political ex- 
“ istence and of the trontiers of the Kingdom of Greece, 
“ the three Protecting Powers maintain simply the terms 
“ in which it is expressed by Article I V. of the Convention 
“ of May 7, 1832. 

** It is agreed that the Ionian Islands shall be included in 
“ that guarantee, when their union to the Hellenic Kingdom 
“ shall have obtained the consent of the parties concerned. 

“ (2) With regard to the financial obligations wliich 
“ Greece has contracted towards the three Protecting 
“ Powers, on account of the loan, in virtue of Article XII. 
“ of the Convention of May 7, 1832, it is understood that 
“ the Courts of France, Great Britain, and Russia will in 
“ concert watch over the strict execution of the engagement 
“ proposed at Athens by the representatives of the three 
“Powers, and accepted by the Greek Government-, with 
“the concurrence of the Chambers, in the month of June, 

“ 1860”{y). 

The Lord High Commissioner dissolved the Ionian Par- 
liament, “ with a view to consult in the most formal and 
“ authentic manner the wishes of the inhabitants of the 
loman Islands as to their future destiny.” 


(y) Atm. Rtp. 1863/pp. 296-7. 



110 


INTERNATIONAL LAW. 


The new Parliament unanimously resolved in favour of 
the union of the Ionian Islands with Greece. “ A Treaty 
“ was concluded between her Majesty, the Emperor of 
“ Austria, the Emperor of the French, the King of Prussia, 
and the Emperor of Kussia, which was signed at London 
“ on November 14, and by it her Majesty renounced the 
protectorate over ^ the islands of Corfu, Cephalonia, Zante, 
Santa Maura, Ithaca, Cerigo, and Paro, with their depen- 
dencies.* It was also provided that the Ionian Islands, 
“ after their union to the Kingdom of Greece, * shall enjoy 
*‘the advantages of a perpetual neutrality; consequently 
no armed force, either naval or military, shall at any time 
“be assembled or stationed upon the territory or in the 
“ water of those Islands, beyond the number that may be 
“ strictly necessary for the maintenance of public order, and 
“ to secure the collection of the public revenue. The high 
“ contracting parties engage to respect the principle of neu- 
“ trality stipulated by the present article ’ ” (c). 

It was further provided that the fortifications of Corfu 
and its immediate dependencies should be demolished pre- 
viously to the withdraAval of the British troops. 

LXXVIII. In all the foregoing insfcmces (excepting 
perhaps in the case of Servia), though they may exhibit a 
greater or a less derogation from the rights of independent 
Sovereignty, the attribute of free and uncontrolled agency in 
their external relations with foreign States is Avanting. 

LXXIX Seventhly. — There are in Euro])e some few 
States which are Free Bepublics, to Avliich Consuls are 
accredited, and which, strictly speaking, are capable of 
entering into treaties («) with Foreign Powers. 


(a) Ann. Reg. 1803, pp. 293-7. 

(a) For example, see the Treaty, in 1841, between Mexico and these 
dities, entitled ** Traitd d’Amiti^, de Navij^atiou et de Commerce, condu 
entio la Rdpublique du Mexique et les Yilles ansdatiques de Brdne, 
Lubeck, et Ilambourup ; signd a J/>ndres le 7 aAril 1832, ratifid h Londres 
le 8 norembre 1841.”— De M. et de C. v. 105. 

ConYeutiou between the Hanseatic States and United States of North 



IONIAN ISLANDS. 


Ill 


Bremen, Hamburg, and Liibeck {b) were a few years ago, 
and still appear to be. Free cities of Germany — ^the only 
remains of that once formidable and celebrated Hanseatic 
League, the last general Diet of which was held at Lubeck 
in 1630. These three towns were Cities of the German 
Empire, and since 1814 had been admitted as members of 
the German Confederation, and had, in conjunction with 
Frankfort, a vote in the Diet. They now form part of the 
German Empire, but remain outside the limits of the ZolL 
verein. 

LXXX. Frankfort-on-the-Main (c) was the most im- 
portant Free town of Germany, and, as has been mentioned, 
the seat of the German Diet. The constitution of this Free 
city was established in 1816. It consisted of a Senate in 
which the Executive Power is lodged, and a Legislative body 
chosen by electors of the city and suburbs. In 1866 it was 
forcibly seized by and absorbed into Prussia, and now forms 
part of the territory of that kingdom. 

LXXXI. Andorra or Andorre is a small independent 
State in a valley in the Eastern Pyrenees between the 
French department of Ari^ge and Catalonia in Spain. It 
is considered as a neutral and independent Province, though 
to a certain extent connected both with France and Spain. 
This little Republic has preserved for a long series of years 
the institutions which it now enjoys. 


America, London, Sept. 29, 1825. — JElliot'a American Diplomatic Code, 
ii.202. 

Convention with the Porto, May 1839. — Martens, Nouv. Bee. ii. 188. 
(6) MUtiti, Mamid deg Conmla, 1. L c. iii. s. 9 ; 1. ii. c. i. a. 3, .Vrt. 6. 
Walter Atmen ; “ Urkundliche GescMchte doa Ursprungs dor lleutachen 
Hanse.” — Vide post, § cxi. 

(c) Treaties j^tween Great Britam and Prankfort : — 

Treaty, Commerce and Navigation, London, May 13, 1832. — Hertd^g 
vol. iv. 147, 163, 648. 
ii. Dec. 29, 1836.~2i. vol. v. 97, 98, 626. 

Convention, Commerce and Navigation, March 2, 1841. — Ih, vol. vi. 
761, 766, 996. 

Traitd de Commerce et de Navigation eutro la Gr6ce et les Villes 
«ms«a%ue8, mai 1843.— Vide De M.etC.m. 



112 


IITTEBNATIONAL LAW. 


LXXXII. ,San Marino is also a veiy small but inde- 
pendent Republic in the north-east of Italy, encircled by 
Provinces formerly belonging to the Pontifical States. It 
possesses an area of 21 miles, with ja town of the same name. 
The military force of the Republic is said to consist of 950 
men, and the whole population to be about 7,800. In 1739 
Cardinal Alberoni subjected it to the Pope, who, however, 
restored the Republic. lu 1797 it declined the offer of an 
increase of territory made to it by Napoleon, who appears 
to have scrupulously respected its neutrality. 

LXXXIII. Eighthly. — The Constitution and Territory 
of Belgium have been also definitively established by 
Treaty (</), and are therefore matter of International Law. 
It will be seen that a perpetual neutrality, in questions 
arising between other Powem, is the most remarkable con- 
dition of the national existence of Belgium. 

According to the Treaty of April 19, 1839 (superseding 
the original Treaty of November 15, 1831), the Belgian 
territory is composed of the provinces of South Brabant, 
Liege, Namur, IlainauU, West Flanders, East Flanders, 
Antwerp, and Limbourg ; such as they formed part of the 
United Kingdom of the Netherlands constituted in 1815, 
with the exception of certain districts of the province of 
Limbourg. 

The Belgian territory, moreover, comprises a part of the 
Grand Duchy of Luxembourg. 

By Article VII. of the Treaty, it is also provided that 
Belgium, within tlie limits specified in Arts. 1, 2, and 4, 
shall form an independent and perpetually neutral State. It 
shall be bound to observe such neutrality towards all other 
States. 

The following Articles should be noticed : 

“ 8. The drainage of the waters of the two Flanders shall 

be regulated between Holland and Belgium, according to 
** the stipulations on this subject contidned in Art. 6 of the 


(d) Bertdefs Treaties, vol. v. pp. 26-<Sl, S54. 




BEtGIUU. 


113 


“definitive Treaty, concluded between his Majesty the 
“ Emperor of Germany and the States General on the 8th of 
“ November, 1785 ; and in conformity Avith the said article, 

“ Commissioners, to be named on either side, shall make 
“ arrangements for the application of the provisions contained 
“in it 

“9. The provisions of Arts. 108-117, inclusive of the 
“ General Act of the Congress of Vienna, relative to the free 
“ navigation of navigable rivers, shall be applied to those 
“ navigable rivers which separate the Belgian and the Dutch 
“ territories, or which traverse them both. 

“ So far as regards specially the navigation of the Scheldt, 

“ it shall be agreed that the pilotage and the buoying of its 
“ channel, as well as the conservation of the channels of the 
“ Scheldt below Antwerp, shall be subject to a joint superin- 
“ tendence ; and that this joint superintendence shall be exer- 
“ cised by Commissioners, to be apjwinted for this purpose 
“ by the two parties. Moderate pilotage dues shall be fixed 
“ by mutual agreement, and those dues shall be the same for 
“ the vessels of all nations.” 

In 1870, Great Britain entered into separate Treaties with 
France and Prussia, then at war, with respect to the neutra- 
lity of Belgium. The ratifications were exchanged in Lon- 
don on the 9th and on the 26th of August respectively. 
The following is the document, which is the same, mutatis 
mutandis, in both cases : — 

“ Her Majesty the Queen of the United Kingdom of 
“ Great Britain and Ireland, and his Majesty the Emperor of 
“ the French, being desirous at the present time of recording 
“ in a solemn act their fixed determination to maintain the in- 
“ dependence and neutrality of Belgium, as provided by the 
“7th Article of the Treaty signed at Loudon on April 
“ 19, 1839, between Belgium and the Netherlands, Avhich 
“ Article was declared by the Quintuple Treaty of 1839 to be 
“ considered as having the same force and value as if textually 
‘inserted in the said Quintuple Treaty, their sud Majesties 
“havedetermined to conclude between themselves a separate 

I, X 



114 


INTERNATIONAL LAW. 


treaty, which, without impairing or invalidating the con- 
** ditions of the said Quintuple Treaty, shall bo subsidiary and 
“ accessory to it ; and they have accordingly named as their 
" plenipotentiaries for that purpose, that is to say, &c. 

“ Article I. His Majesty the Emperor of the French 
"having declared that, notwithstanding the hostilities in 
"which France is now engaged with the North German 
" Confederation and its allies, it is his fixed determination to 
" respect the neutrality of Belgium so long as the same 
"shall be respected by the North German Confederation 
“ and its allies, her Majesty the Queen of the United King- 
" dom of Great Britain and Ireland on her part declares 
“ that, if during the said hostilities the armies of the North 
" German Confederation and its allies should violate that 
" neutrality, she will be prepared to co-operate with his 
" Imperial Majesty for the defence of the same in such 
" manner as may be mutually agreed upon, employing for 
" that purpose her naval and military forces to ensure its 
"observance, and to maintain, in conjunction with his 
" Imperial Majesty, then and thereafter, the independence 
" and neutrality of Belgium. 

" It is clearly understood that her Majesty the Queen of 
" the United Kingdom of Great Britain and Ireland does 
" not engage herself by this treaty to take part in any of 
" the general operations of the war now carried on between 
" France and the North German Confederation and its 
"allies, beyond the limits of Belgium as defined in the 
" Treaty between Belgium and the Netherlands of April 
« 19 , 1839 . 

"Article II. His Majesty the Emperor of the 
** French agrees on hiS part, in the event provided for in 
the foregoing Article, to co-operate with her Majesty the 
" Queen of the United Kingdom of Great Britain and Ire- 
" land, employing his naval and military forces for the purpose 
aforesaid ; and, the case arising, to concert with her Majesty 
" the measures which shall be taken, separately or in common, 
" to secure the neutrality and independence of Belgium. 



BELGIUM — LUXEMBURG — GREECE. 


115 


" Article III. This Treaty shall be binding on the 
<'high contracting parties during the continuance of the 
“present war between France and the North German 
“ Confederation and its allies, and for twelve months after 
“ the ratification of any treaty of peace concluded between 
“ those parties ; and on the expiration of that time the in- 
“ dependence and neutrality of Belgium nill, so far as the 
“ high contracting parties are respectively concerned, con- 
“tinue to rest, as heretofore, on the 1st Article of the 
“ Quintuple Treaty of April 19, 1839. 

“ Signed at London August 11, 1870. 

“ Granville. 

“ La V alette ” (e). 

The Grand Duchy of Luxemburg is connected by a 
personal union with the Kingdom of the Netherlands, the 
King being Grand Duke. It was included in the Germanic 
Confederation from 1815 to 1866, and its capital, considered 
one of the strongest fortresses in Europe, was a Federal for- 
tress. After 1866, considerable discussion arose as to the 
status of Luxemburg. The question was finally settled by 
the Treaty of London, of May 11, 1867, by which the Grand 
Duchy is declared neutral, and the capital has ceased to be 
a fortified place. It remains inside the Zollverein, but has 
no other connection with the German Empire (/). 

LXXXIV. Ninthly. — The Constitution and Temtory 
of Greece aro the subject of Treaty and guarantee, and 
under the protection of International Law. The Articles 
of the Treaty (signed in London May 7, 1832), which 
principally affect the International Status of Greece, are as 
follows ; — 

“ 1. The Courts of Great Britain, France, and Russia, 
“ duly authorised for this purpose by the Greek nation, offer 


See Deh&te in the House of Lords on this Treaty, 
mty between Bel^um and England for the mutual surrender of 
Jfi^tive Criminals. BrusseU, May 20, 1876. 
pott, s. ccccvi. 



116 


INTERNATIONAL LAW. 


“the hereditary Sovereignty of Greece to the Prince 
“ Frederick Otho of Bavaria, second son of his Majesty the 
“ King of Bavaria. 

“ 2. His Majesty the King of Bavaria, acting in the name 
“ of his said son, a minor, accepts, on his behalf, the hereditary 
“Sovereignty of Greece, on tlie conditions herein-afber 
“ settled. 

“ 3. The Prince Otho of Bavaria shall bear the title of 
“ King of Greece. 

“ 4. Greece, under the Sovereignty of the Prince Otho of 
“ Bavaria, and under tlie guarantee of the three Courts, shall 
“ form a monarchical and independent State, according to the 
“ terms of the Protocol signed between the said Courts on 
“ February 3, 1830, and accepted both by Greece and by 
“ the Ottoman Porte. 

“ 5 . The limits of the Greek State shall be such as shall 
“ be definitively settled by the negotiations which the Courts 
“ of Great Britain, France, and Kussia have recently opened 
“ with the Ottoman Porte, in execution of the Protocol of 
“ September 26, 1831. 

“ 6. The three Courts having beforehand determined to 
“ convert the Protocol of February 3, 1830, into a defini- 
“ tive Treaty, as soon as the negotiations relative to the 
“ limits of Greece shall have terminated, and to communicate 
“ such Treaty to all the States with which they have rela- 
“ tions, it is hereby agreed, that they shall fulfil this engage- 
“ment, and tliat bis Majesty the King of Greece shall 
“ become a contracting party to the Treaty in question. 

“7. The three Courts shall, from the present moment, 
“ use their influence to procure the recognition of the Prince 
“ Otho of Bavaria as King of Greece by all the Sovereigns 
“ and States with whom they have relations. 

“ 8. The Royal Crown and dignity shall be hereditary in 
“ Greece; and shall pass to the direct and lawful descendants 
“ and heirs of the Prince Otho of Bavaria, in the order of 
“ primogeniture. In the event of the decease of the Prince 
“ Otho of Bavaria, without direct and lawful issue, the Crown 



aBEECR. 117 

«of Glreece shall pass to his younger brother, and to his direct 
« and lawful descendants and heirs, in the order of primo- 
« geniture. In the event of the decease of the last-mentioned 
« Prince also, without direct and lawful issue, the Crown of 
« Greece shall pass to his younger brother, and to his direct 
« and lawful descendants and heirs, in the order of primogeni- 
ture. In no case shall the Crotvn of Greece and the Crown 
of Bavaria be united upon the same head. 

“ 9. The majority of the Prince Otho of Bavaria, as King 
“ of Greece, is fixed at the period when he shall have com- 
‘^pleted his twentieth year ; that is to say, on June 1, 1835. 
“ lb. During the minority of the Prince Otho of Bavaria, 
King of Greece, his rights of Sovereignty shall be exercised 
“ in their full extent by a Regency composed of three Conn- 
“ cillors, who shall be appointed by his Majesty the King of 
“ Bavaria. 

“11. The Prince Otho of Bavaria shall retain the full 
“ iwssession of his appanages in Bavaria. His Majesty the 
“ King of Bavaria, moreover, engages to assist, as far as may 
“ be in his power, the Prince Otho in his position in Greece, 
“ until a revenue shall have been set apart for the crown in 
“ that State ” (y). 

The union of the Ionian Islands with Greece has been 
already mentioned (A). 

In the recent war between Russia and Turkey, Greece 
was persuaded by the Great Powers to remain neutral, 
for which she obtained a miserable compensation in the 
following Provisions of the Treaty of Berlin : — 

“ Abticle XXIII. The Sublime Porte undertakes 
“ scrupulously to apply in the Island of Crete the Organic 
“Law of 1868 (‘ Rcglement’), whilst introducing into it 
“ the modifications which may be considered equitable. 

“ Similar laws adapted to local necessities, excepting as 
“regards the exemption from taxation granted to Crete, 


ig) Herttle6t Tre(dm, vol. iv. pp. 320, 322. 
(A) Vide fuftra, s, Ixxrii. 



118 


INTERNATIOXAL LAW. 


** shall also be introduced into the other parts of the Turkish 
** Empire for which no special organization has been pro- 
“ vided for by the present Treaty. 

Special Commissions, in which the native element shall 
“ be largely represented, shall be charged by the Sublime 
Forte with the elaboration of the details of the new laws 
“ (‘ R^glemeuts ’ ) in each province. 

The schemes of organization resulting from these labours 
** shall be submitted for examination to tlie Sublime Forte, 
which, before promulgating the Acts for putting them into 
force, shall take the advice of the European Commission 
“ instituted for Eastern Boumelia. 

” Article XXIV. In the event of the Sublime Forte 
“ and Greece being unable to agree upon the rectification of 
“ frontier suggested in the 13th Frotocol of the Congress 
“of Berlin, Germany, Austria-Hungary, France, Great 
“ Britain, Italy, and Russia reserve to themselves to offer 
“ their mediation to the two parties to facilitate the negotia- 
“ tions." 

LXXXV. Tenthly. — As to States standing in a Feudal 
Relation to other States. These may be said to be now con- 
fined to the provinces of Turkey (*). 

The existing independent Regencies tributary to the Sub- 
lime Forte now are : — Tunis, Tripoli, and Egypt. There 
is also the peculiar position of Cyprus under the recent 
Treaty between the Forte and Great Britain to be con- 
sidered. 

LXXXVI. The relations subsisting between the Forte 
and these tributary States is of an anomalous and perplexing 
character ; nor have the Great Fowers of Europe been always 
agreed as to the light in which all these Regencies are to be 
considered. 

LXXXVII. First, with respect to the Barbary States, 
which are tributary to the Forte. These have been almost 


(i) JToeA, Hitt, det Tr. ir. 388,424,438. Chuntben't Encyol. “Tripoli,” 
vol. ix. p. 



BABBARY STATES. 


119 


of necessity treated to a certain extent, and ior certain pur- 
poses, as de facto independent States, though their de jure 
subordination to the Porte was undisputed. 

The course (j) which the European Powers have adopted 
has been such as, on the one hand, would recognize the 
Supremacy {Suzerainete) of the Porte over its dependencies ; 
while, on the other hand, these Powers have often demanded 
and enforced redress in vindication of the injuries done to 
their subjects, immediately and in the first instance from 
these dependencies themselves. 

The necessity of the cases, and the reason of the thing, 
have rendered this irregular mode of International proceeding 
unavoidable. 

“ Nature ” (Mr. Burke (A) observes, with his usual saga- 
city) has said it, that the Turk cannot govern Egypt, 
** Arabia, and Curdistan as he governs Thrace. Nor has he 

the same dominion in Crimea which he has at Brusa and 

“ Smyrna The Sultan gets such obedience as he can. 

“ He governs with a loose rein that he may govern at all ; 
“ and the whole force and vigour of his authority in his 
“centre is derived from a prudent relaxation in all his 
“ borders.” 

LXXXVIII. Since the conquest of Algiers by France 
(18.30), Tripoli and Tunis arc the only Barbary States {Re- 
gences barbaresques) tributary to the Porte. Indeed, Tripoli 
is, properly speaking, not a Barbary State under the pro- 
tection of the Porte, but a province of the Porte, in the 

(/) JHabtg, Le Droit ptiUc (h V Europe, t. i. c. v. “ Le commerco ue 
*6roit point on suret(S contro les Pui«<sancfis de la c6to do I'Afriquo, si I'on 

so contentoit do prendre A co sujet dos engimromeiiii avoc la Porte 

Awssi la France, I’Angleterrc, les Provinces-Unies, etc., traiteiit-elles 
directment ayce Tonis, IVipoli, Alger, etc. Dependant ces Barbarcaqnes, 
M oWryant leurs traits qn’antont qu’ils y Boot forces, s’oxposent soovent 
a etre chatite avec viguour ; et dans ces ocensions il est tres-arantageux 
d avoir contraetd de telle fa$ou avec le Grand Seigneur qu’il ne puisse 
prendre leur defense.”— ii. p. Sfld. 

WheaUnfa EUnt. de Droit Inter, p. 49 ; Wheaton's Hist. p. 53(». 

^eech on Ooneiliation with America. — Eurkds Works, vol. iii. pp. 



120 


INtEKNATIONAL LAW. 


same condition and category as Bagdad or any other province 
of the Ottoman Power. The Bey is appointed and removed 
at the pleasure of the Sultan : nevertheless, European Powers 
have entered into Treaties with the Bey (f) as an indepen> 
dent Power, and have sought redress from him, in the first 
instance, for injuries inflicted on their subjects. 

LXXXIX. Tunis, at the present time, stands in a diffe- 
rent and more independent category. The Bey is Hereditary 
Begent, and practically, if not theoretically, also irremovable 
by the Sultan, though, like Egypt, tributary to the Porte. 

In 1803 (m), nevertheless, the Porte addressed a Finnan 
equally to Tunis and Tripoli, commanding both Regencies 
to obey the conditions of a Treaty of navigation and com- 
merce which the Porte had entered into with Prussia, and 
which related to both Tripoli and Tunis. 

In 1813 a Treaty was entered into between Great Britain 
and Tunis (w), by which this Regency agreed to acconl to the 
inhabitants of the Ionian Islands the privileges of British 
subjects, provided Algiers and Tripoli adopted the same 
course. 

XC. The principal circumstances which mark the recog- 
nition by the European Powers of the Suzerainete of the 
Porte over these Regencies appear to be these ; — 

1. That tl»ey do not accredit Public Ministers to the 
Courts of these Regencies, but send Consuls only (o). 

2. That when the Beys, Pachas, or Governors of these 
Regencies visit the European Courts, they are presented 
there by the Ambassador of the Porte, and are not received 
as the representatives of an independent State. France, it 
is believed, has not always been so particular as Great 

(i) The Bey styles himself, in these Treaties, “ Bey, Gouverneur et 
Capitiune-G^n^iral de la cit^ et loyaume (or i^geiice) de Tripoli.” See 
Treaties of 1762 and 1818 (last Treaty) between Tripoli and Cheat Britain ; 
Treaty of ISJiO (last Treaty) between France and Tripoli. 

(»i) Jh Martens et de Qmy, Hens, de Tr. ii. 311. 

(ti) JJ. 4D1. 

(o) Vide fmt, the important distinction in International Law between 
the Ihiblip Minister and the Consul, 



MOROCCO— MONTENEGRO. 121 

Britain in the observance of this not insignificant point of 
etiquette. 

3. That they have recognized the rule, however departed 
fi-om in emergencies, either of negotiating through the Porte 
with respect to these Regencies, or of obtaining the subse- 
quent confirmation of the Porte for arrangements entered 
into with these Regencies. 

XCI. Morocco^ it may be observed in passing, is un- 
questionably an Independent State, of which the Emperor 
is the International Representative. Various Treaties be- 
tween him and European Powers have been from time to 
time concluded, without any reference direct or indirect to 
the Porte (p), 

XCII. The mountainous province of Montenegro, which 
was a district of Western Turkey, consisted of an elevated 
plain, separated by a nan*ow strip of Austrian territory 
from the Adriatic, bounded on the north-west and north by 
the Bosnian Herzegovina, on the east and south by the 
Albanian Pachalic of Scutari, and on the south-west by the 
Austrian frontier of Dalmatia, at the Bocca di Cattaro iq). 

This singular region of mountain fortresses, which was 
occupied by Ivan Czernojewich, who left his paternal 
domains near the Lake Scutari towards the end of the 
fifteenth centiy, has ever since that period been in a semi- 
independent condition. 

At first, the Montenegrins, having adopted the Greek 
religion, were placed under the Protectorate of Venice ; but 
in 1 623, after a desperate resistance, they Avere compelled to 
pay a capitation tax {hnratsch) to the Sultan. 

The Montenegrins have been till lately governed by a 
i*riuce Bishop of the Greek Church, called a Vhdika. For 

(id For tbe Treatj' settling the frontiera botweeji French ^Vlgeria and 
Morocco see Oukat'e Mhn. viL ch. xli. (1841-7). 

(?) Dalmatia atid Montenegro, 2 vols, 1848. 

Treaty of Carloicttz, 1001 ; ISchmaues, ii. 1131. 

I reaty of Pataarowitz, 1718', Schmaug»,n. 1706. 

Treaty of Belgrade, 1780 ; Wench, Cod. J. Oent. i. 316. - 

Treaty of Sfftowa, 1701 ; Mortem, Bee. de Tr, vnl. v. p, 246. 



122 


INTERNATIONAL LAW. 


a centuiy and a half this dignitary appears to have been 
hereditary in the Petrovitsch family; but since 1830 the 
Prince has been a layman. 

In former editions of this work reference has been made 
to portions of the history of this gallant and interesting 
people. But the recent Treaty of Berlin has placed their 
liberty and independence upon a new, and, it is to be hoped, 
safe foundation. 

The Articles of that Treaty bearing upon Montenegro 
are as follows : — 

Article XXVI. The independence of Montenegro is 
recognized by the Sublime Porte and by all those of the 
high contracting parties who had not yet admitted it. 

Article XXVII. The high contracting parties are 
“ agreed on the following conditions : — 

“ In Montenegro the distinction of religious beliefs and 
** confessions shall not be objected to any person as a reason 
for exclusion or incapacity as regards the enjoyment of 
** civil and political rights, the admission to public employ- 
'‘ments, functions, and honours, or the exercise of the 
** various professions and industries in any locality whatso- 
ever. 

“ The freedom and the outward practice of all forms of 
“ worship shall be secured to the natives of Montenegro, as 
“ well as to foreigners, and no hindrance shall be given 
“ either to the hierarchical organisation of different com- 
“ munions or to their relations with their spiritual chiefs.” 

By Article XXVIII. the new frontiers of Monte- 
negro are fixed. 

Article XXIX. is as follows ; 

Antivari and the sea-coast belonging to it are annexed 
“ to Montenegro under the following conditions : — 

“ The districts situated to the south of that territory, in 
accordance with the delimitation above laid down, as far 
as the Boyana, including Dulcinjo, shall be restored to 
“ Turkey. 

“ The Commune of Spica, as far ns the soutlmmmost point 



MONTKNEGRO. 


123 


« of the territory indicated in the detailed description of the 
''frontiers, shall be incorporated with Dalmatia. 

" Montenegro shall have full and entire liberty of naviga- 
" tion on the Boy ana. No fortifications shall be constructed 
" on the course of that river except such as may be neces- 
"sary for the local defence of the stronghold of Scutari, 
" and they shall be confined within a limit of 6 kilometres 
" of that town. 

" Montenegro shall have neither ships of war nor flag of 
“war. 

'' The port of Antivari and all the waters of Montenegro 
“ shall remain closed to the ships of war of all nations. 

'' The fortifications situated on Alontenegrin territory be- 
“ tween the lake and the coast shall be razed, and none can 
“ be rebuilt within this zone. 

“ The administration of the maritime and sanitary police, 
“ both at Antivari and along the coast of Montenegro, shall 
“ be in the hands of Austria-Hungary by means of light 
“ coast-guard boats. 

“ Montenegro shall adopt the maritime code in force in 
“Dalmatia. On her side Austria-Hungary undertakes to 
“ grant Consular protection to the Montenegrin merchant 
“ flag. 

“ Montenegro shall come to an understanding with 
“ Austria-Hungary on the right to construct and keep up 
“ across the new Montenegrin territory a road and a rail- 
“ way. Absolute freedom of communication shall be guaran- 
“ teed on tliese roads. 

“ Article XXX. Mussulmans or others in possession 
“ of property in the territories annexed to Montenegro, and 
"who wish to reside outside the Principality, can retain 
“ their real property either by farming it out, or by having 

it administered by third parties. 

“ No one shall be liable to be evicted otherwise than 
“ legally for the public welfare, and by means of a previous 
“indemnity. 

“ A Turco-Montenegrin Commission shall be appointed 



124 


INTBRNATIONAL LAW. 


“ to settle^ during a period of three years, all matters rela- 
“ tire to the manner of alienating, cultivating, and working, 
for the benefit of the Sublime Porte, the properties of the 
State, and the religious establishments ( Vdkoufs), as well 
“as questions relative to the interests of private parties 
** connected with these. 

“ Article XXXI. The Principality of Montenegro shall 
“ come to a direct understanding with the Ottoman Porte 
“ Avith regard to the establishment of Montenegrin agents 
“ at Constantinople, and at certain places in the Ottoman 
“ Empire where they shall be decided to be necessary. 

“Montenegrins travelling or residing in the Ottoman 
“ Empire shall be subject to the laws and authorities of 
“ Turkey, according to the general principles of international 
" law, and the established customs with regard to Monte- 
“ negrins. 

“ Article XXXII. The Montenegrin troops shall be 
bound to evacuate, in tAventy days from the date of the 
“ ratification of the present Treaty, or sooner if possible, the 
“territory that they occupy at present beyond the new 
“ limits of the Principality. 

“ The Ottoman troops shall evacuate the territory ceded 
“ to Montenegro in the same period of twenty days. They 
“ shall have, however, alloAved them a supplementary period 
“ of fifteen days, as well for evacmating the fortresses and 
“ withdrawing provisions and material of war from them, as 
“ for drawing up inventories of the implements and objects 
“ which cannot be immediately removed. 

“ Article XXXIII. As Montenegro is to bear her 
“ share of the Ottoman public debt for the additional terri- 
“ tories given her by the Treaty of Peace, the Representa- 
“ tives of the PoAvers at Constantinople are to determine 
“ the amount of the same in concert with the Sublime Porte 
“ at a fair valuation.” 

XCIII. The districts of Eastern Europe called Moldavia 
and Wallachia were two Principalities situated between the 
Carpathian mountains, the Danube, and the Pruth. 



BOUMANIA. 


125 


After undergoing various vicissitudes of fortune they now 
constitute the State of Roumania, governed by an here- 
ditary Prince. They were the subject of the following 
provisions in the recent Treaty of Berlin : — 

Article XLIII. The liigh contracting parties recog- 
« mze the independence of Roumania, making it dependent 
on the conditions laid down in the two following articles. 

“ Abticle XLIV. In Roumania the difference of re- 
** ligious creeds and confessions shall not be alleged against 
*'any person as a ground for exclusion or incapacity in 
matters relating to the enjoyment of civil and political 
rights, admission to public employments, functions, and 
“honours, or the exercise of various professions and in- 
“ dustries in any locality whatsoever. 

“ The freedom and outward exercise of all forms of 
“worship will be assured to all persons belonging to the 
“ Roumanian State, as well as to foreigners, and no hin- 
“ drance shall be offered either to the hierarchical organisar 
“ tion of the different communions, or to their relations with 
“ their spiritual chiefs. 

“ The nationals of all the Powers, traders or others, shall 
“ be treated in Roumania without distinction of creed, on a 
“ footing of perfect equality. 

“Article XLV. The Principality of Roumania re- 
“ stores to his Majesty the Emperor of Russia that portion 
“ of the Bessarabian territory detached from Russia by the 
“ Treaty of Paris in 1856, bounded on the west by the 
“ waterway of the Pruth, and on the south by the waterway 
“ of the Kilia branch and the mouths of Stary-Stamboul.” 

Article XLVl. Specifies the territories added to 
Roumania, including tlie Dobroutcha and the territory 
situated south of it, as far as a line starting eastward of 
Silistria to the Black Sea. .... 

“ Article L. Until the conclusion of a Treaty between 
Turkey and Roumania, regulating the privileges and 
“ attributes of Consuls, Roumanian subjects travelling or so- 
“ journing in the Ottoman Empire, and Ottoman subjects 



126 


INTERNATIONAL LAW. 


“ travelling or sojourning in Boumania^ shall enjoy all rights 
guaranteed to the subjects of other European Powers. 

“ Article LI. With regard to public works and other 
** enterprises of a like nature, Boumania will be substituted 
" for the Sublime Forte as regards its rights and obligations 
“ throughout the ceded territory. .... 

“Article LIII. The European Commission of the 
Danube, in which Boumania shall be represented, will con~ 
“ tinue in the discharge of its duties, and will exercise them 
“ henceforth as far as Galatz in complete independence of 
“ the territorial authorities. All the Treaties, arrangements, 
“ acts, and decisions relating to its rights, privileges, pre- 
“ rogatives, and obligations are confimed.” 

XC V. (r) iServia is a Principality once included within 
the limits of European Turkey. It is bounded on the north 
by the Austrian Empire ; on the east by Wallachia and Bul- 
garia ; on the south by Boumelia and Bosnia, and on the 
west by Bosnia. 

Servia Proper contains about a million and a half of 
inhabitants ; but the Servian race is said to amount to live 
millions in number, and to occupy one-third of the Euro- 
pean territories of Turkey, and all the south of Hungary. 

In the middle ages the Chief of this people assumed the 
title of Emperor of the East, and was only subdued by the 
united forces of the adjoining nations. 

The Servian empire was at last divided between Austria 
and the Porte. By the Treaty of Passarowitz, in 1718, the 
Porte ceded the north of Servia, with the capital Belgrade, 
to Austria, but regained this territory by the Treaty of 
Belgrade in 1739. In 1801 the struggle of the Servians 
for liberty began to be aided — at first secretly, and after 
1809 openly — by liussia; and the Treaty of Bucharest, in 
1812, between Bussia and the Porte, contained in its eighth 
Article a provision securing, among other tilings, to the 
natives the internal administration of their afiairs, on the pay- 
ment of a moderate contribution to Turkey. In 1813 the 
(r) § XOIV. of the old editions is omitted. 


8ERVIA. 


127 


Servian insurrection broke out again, but, no longer assisted 
by Bussia, was put down with circumstances of horrible bar- 
barity. The Servians applied in vain to the Congress of Vienna 
for the mediation of Christendom in their favour. But the 
Greek insurrection in 1821, and the subsequent independence 
of Greece, operated favourably upon the condition of Servia ; 
and it was recognized by the European Powers as a distinct 
and independent nation, governed by a native Prince ; though 
a Turkish garrison was till recently maintained in Belgrade, 
and though a tribute was paid to the Porte till 1876. 

Beside the Treaty of Bucharest, already mentioned, be- 
tween Bussia and the Porte, the Treaties of Ackermann in 
1826, and of Adrianople in 1829, arc to be consulted for 
the former national Status of Servia. By the recent 
Treaty of Berlin the future Status of Servia is as follows — 
** Article XXXIV. The high contracting parties re- 
“ cognize the independence of the Principality of Servia, sub- 
" ject to the conditions set forth in the following article : — 
“Article XXXV. In Servia the distinction of religious 
“ creeds and confessions shall not be raised against any one 
“ as a motive of exclusion or of incapacity in everything 
“ that concerns the enjoyment of civil and political rights, 
“ admission to public employments, functions, and honours, 
“ or the exercise of the various professions and industries, in 
“ any locality whatever. 

“ The freedom and the open observance of all forms of 
“ worship shall be assured to all persons of Servian origin, 
“ as well as to foreigners, and no obstacle shall be opposed 
“ either to the hierarchical organization of the different com- 
munions, or to their relations with their spiritual superiors. 
“ Article XXXVI. Servia receives the territories in- 
** eluded in the subjoined delimitation,” which are tlien set 
forth. 

“Article XXXVII. Until the conclusion of fresh 
arrangements there shall be no change in Servia in the 
actual conditions of the commercial relations of the Prin- 
* cipality with foreign countries. 



128 


INTERNATIONAL LAW. 


No transit duties shall be levied on goods passing 
" through Servia. 

The immunities and privileges of foreign subjects, as 
“ well as the Consular rights of protection and jurisdiction, 
“ such as they now exist, shall remain in full vigour, as long 

as they shall not have been modified by mutual consent 
" between the Piincipality and the Powers interested. 

"Article XXXVIII. The Principality of Servia 
" takes the place, for its part, of the Sublime Porte, in its 
" engagements both towards Austria-Hungary and towards 
** the Company for the working of the railways of Turkey 
" in Europe, in respect to their completion and connection, 
" as well as for the working of the railways to be constructed 
" on the territory newly acquired by the Principality. 

" The Conventions necessary for settling these questions 
" shall be concluded immediately after the signature of the 
"present Treaty between Austria-Hungary, the Porte, 
" Servia, and, in the limits of its competency, the Princi- 
" polity of Bulgaria. 

"Article XXXIX. Mussulmans in possession of 
" property in the territories annexed to Servia, and who 
“ wish to reside outside the Principality, can retain their 
"real property, either by farming it out or by having 
" it administered by third parties. 

" A Turco-Servian Commission shall be appointed to 
“ settle, during a period of three years, all matters rela- 
" tive to the.manncr of alienating, cultivating, and working, 
" for the benefit of the Sublime Porte, the properties of the 
" State, and the religious establishments ( Vakoufs), as well 
"as questions relative to the interests of private parties 
" connected Avith these. 

“Article XL. Until the conclusion of a Treaty 
" between Turkey and Servia, Servian subjects travelling 
" or sojourning in the Ottoman Empire shall be treated ac- 
" cording to the general principles of International Law. 

Article XLI. “ The Servian troops shall be bound to 
"evacuate, within fifteen days from tliO excliange^of the 



CYPRUS. 


129 


« ratifications of the present Treaty, the territory not com- 
prised within the new limits of the Principality. 

‘‘The Ottoman troops shall evacuate the territones 
“ ceded to Servia within the same term of fifteen days. A 
“ supplementary term of an equal number of days shall, 
“ however, be granted to them as well for evacuating the 
“ strongholds and withdrawing the provisions and material 
“ as for preparing the inventory of the implements and ob- 
“ jects which cannot be removed at once. 

“ Article XLII. Servia having to support a part of 
“ the Ottoman public debt in respect of the new territories 
“ annexed to her by the present Treaty, the representa- 
“ tives at Constantinople will fix the amount of it in concert 
“ with the Sublime Porte on an equitable basis.” 

XCVa. The Island of Cyprus (s). — At the close of the 
recent war, the island of Cyprus was assigned by the 
Sultan to be '‘occupied and administered” by England. 
The international position of this island has become so pe- 
culiar and anomalous that it is necessary to give the very 
words of the Treaty and Annex by which this position is 
created. It appears from a preceding Despatch (May 30, 
1878) of the English Foreign Secretary to the English Am- 
bassador at the Porte, that England was alarmed at the 
possible effect upon her Indian possessions of the Russian 
conquests in Asia sanctioned by the Treaty of Berlin, inas- 
much as they might, if the Porte had “ no guarantee for 
“its continued existence but its own strength,” conduce to 
“the speedy fall of the Ottoman domination,” and that 
thereby the “ Oriental interests of Great Britain ” might be 
seriously affected. 

The provisions of the Treaty are as follows ; — 

•‘Article I. If Batoum, Ardalian, Kars, or any of 
“ them shall be retained by Russia, and if any attempt shall 
“ be made at any future time by Russia to take possession of 
“ any further territories of his Imperial Majesty the Sultan 

(») Papers laid before Forliameut, 1878. 

yOLe I, 



130 INTERNATIONAL LAW. 

'Mn Asia, as fixed by the definitive Treaty of Peace, 
** England engages to join his Imperial Majesty the Saltan 
in defending them by force of arms. 

“In return, his Imperial Majesty the Sultan promises 
“ to England to introduce necessary reforms, to be agreed 
“ upon later between the two Powers, into the government, 
“ and for the protection, of the Christian and other subjects 
“ of tbe Porte in these territories (t ) ; and in order to enable 
“ England to make necessary provision for executing her 
“ engagement, his Imperial Majesty the Sultan further 
“ consents to assign the Island of Cyprus to be occupied and 
“ administered by England.” 

The Treaty was signed at Constantinople, June 4, 1878. 
The following Annex, signed July 1, 1878, at Constan> 
tinople, was attached to this Convention. 

“ It is understood between the two high contracting 
“ parties that England agrees to the following conditions 
“ relating to her occupation and administration of the Island 
of Cyprus : — 

“I. That a Mussulman religious tribunal (Mehk4m4i 
“ Sh6ri) shall continue to exist in the Island, which will take 
“ exclusive cognizance of religious matters, and of no others, 
“ concerning the Mussulman population of the Island. 

“ II. That a Mussulman resident in the Island shall be 
“ named by the Board of Pious Foundations in Turkey 
“ (Evkraf) to superintend, in conjunction with a delegate 
** to be appointed by the British authorities, the adminis- 
“tration of the projierty, funds, and lands belonging to 
“ mosques, cemeteries, Mussulman schools, and other re- 
“ ligious establishments existing in Cyprus. 

“ III. That England will pay to the Porte whatever is 
“ the present excess of revenue over expenditure in the 


{t) “ En revanche, sa Majesty Itnp4riale le Sultan promet I’Angle- 
terre dHutroduire les rdformes ndeeasairee (it dtre andtdee pine tard per 
lee deux Pniaeances) ayant trait k la bonne administration et d la proto 
tion dee snjets Chrdtiens et autres de la Sublime Porte qui so tronvent 
8ur lee territoiree en question.” 




CYPRUS. 


131 


^'Island; this excess to be calculated upon and determined 
« by the average of the last five years, stated to be 22,936 
purses, to be duly verified hereafter, and to the exclusion 
<< of the produce of State and Crown lands let or sold during 
« that period. 

IV. That the Sublime Forte may freely sell and lease 
<< lands and other property in Cyprus belonging to the 
** Ottoman Crown and State (Arazii MiriyS ve Einlaki 
“ Houmayoun) the produce of which does not form part of 
“ the revenue of the Island referred to in Article III. 

« V. That the English Oovernraent, through their com- 
“ petent authorities, may purchase compulsorily, at a fair 
“ price, land required for public improvements, or for other 
** public purposes, and land which is not cultivated. 

‘‘VI. That if Russia restores to Turkey Kars and the 
“ other conquests made by her in Armenia during the last 
"war, the Island of Cyprus will be evacuated by Eng- 
"land, and the Convention of June 4, 1878, will be at an 
" end ” (w). 

XCVb. Cyprus is ceded by the Porte for the purposes 
of occupation and administration by England. Those terms 
ai’e the same as those employed in the recent transfer of 
Bosnia and Herzegovina to Austria, who has now established 
her authority over these provinces after much bloodshed, 
and by the employment of a large military force. 

The terms are new and v^ue. The language of the 
Treaty and Annex would lead to the inference that the 
Queen of England stood somewhat in the relation of the 
Khedive to the Sultan, not possessed of the property, 

(a) In the Despatch lost referred to, the English Foreign Secretary 
had written—" Inasmuch as the whole of this proposal is due to the 
•®nexaiaon8 which Bussia has made in Asiatic Turkey, and the conse- 
quences which it is apprehended will flow therefrom, it must he fully 
understood t^t if cause of the danger should cease, the precautionary 
^*eement will cease at the same time. If the Government of Russia 
in**^* surrender to the Porte the territory it has acqnired 

Asia by the recent war, the stipulations in the proposed agreements 
®®*se to operate, and the island will he immediately evacuated.'' 



132 


INTERNATIONAL LAW. 


but of the usufruct of the island, with certain excep-> 
tions, and with the obligation of a cerbun money payment. 
Direct powers of legislation do not seem to be given, and 
the whole tenure, whatever its nature may be, of the island 
is to cease if a third State, Russia, who is no party to the 
Treaty, restores certain places, now in her possession by 
right of conquest, to the Porte. But whatever may be the 
difhculties of construing this Convention, England has lost 
no time in cutting the knot, after her own practical fashion, 
so far as her own interests are concerned, by the issue of an 
Order in Council on September 14, 1878 {x), which, though 
reciting the Foreign J urisdiction Act, seems to treat Cyprus 
like Malta, or any possession of the kind, and which contains 
no reference whatever to the authority of the Porte, except 
by repeating an Order in Council relating to consular juris- 
diction in the dominions of the Porte (;/). 

XeVc. This Order, which may be revoked or altered 
by the Queen in Council, begins as follows : 

“ Whereas it is expedient to make provision for the cxer- 
" cise of the power and jurisdiction vested by treaty in 
‘^hcr Majesty the Queen in and over the Island of 
“ Cyprus : 

“ Now, therefore, her Majesty, by virtue of the powers 
“ in this behalf by the Foreign Jurisdiction Acts, 1843 to 
“ 1878, or otherwise in her vested, is pleased, by and with 
** the advice of her Privy Council, to order, and it is ordered, 

as follows: — 

“ I. There shall be a High Commissioner and Commander- 
** in-Chief (herein-after called * the High Commissioner ’) in 
** and over the said Island of Cyprus (herein-after called * the 
“ said Island ’), and the person who shall fill the said office 
“ of High Commissioner shall be &om time to time appointed 
“by Commission under her Majesty's Sign-Manual and 
“ Signet. 

“II. The High Commissioner shall administer the 

(;i-) See Lemdon (imette, October 1, 1878, 
iy) See Art. xxtu. of Order in Oouncil. 



CYPttUS. 


133 


government of the eaid Island in the name and on behalf 
“ of her Majesty, and shall do and execute in due manner 
all things that shall belong to his said command and to 
“ the trust thereby reposed in him, according to the several 
" powers and authorities granted or appointed to him by 
“ virtue of this Order, and of such Commission as may be 
“issued to him under her Majesty’s Sign- Manual and 
“ Signet, and according to such instructions as may from 
“time to time be given to him under her Majesty’s 
“ Sign-Manual and Signet, or by Order of her Majesty in 
“ Council, or by her Majesty through one of her Prin- 
“ cipal Secretaries of State, and according to such laws and 
“ ordinances as are or shall hereafter be in force in the said 
“ Island.” 

The High Commissioner is to be aided by Legislative and 
Executive Councils, with power to make and unmake laws 
and ordinances, and to make grants and disposition of lands ; 
and a power to give free pardons is couched in very broad 
language— “ to any offender convicted of any crime in any 
“ court or before any judge ” {z). A serious difficulty (n) 
may arise with respect to the subjects of European States, 
who are not English subjects. All the great European 
States have special capitulations and conventions with the 
Porte, as to the adminisU'ation of justice, civil and criminal, 
over their subjects in the Ottoman dominions. Cyprus 
appears to remain Ottoman territory. Of course no Treaty 
between England and Turkey, or Order in Council of Eng- 
land, can affect the right of Foreign States. 

XCVd. The following were the divisions of European 
Turkey, with their chief towns, before the Treaty of Berlin, 
1878 ;— 

r N.E. part, Constantinople, Ad- 
Roumelia, or rianople, Philippopoli or Filibe, 

Rumili . . Selimno, Gallipoli ; S. part, 
- Saloniki, Seres, Monastir. 


(z) Art. xxii. 


(a) Vide pod, ch. xix. 



134 


INTERNATIONAL LAW. 


r Yeni'shehr (anciently Larissa), 
* 1 Tricala. 

{ Scutari, Yanina or Yoanina, Sonli, 
Avlona or Valona, Arta. 
r Sophia, Silistria, Bustchuk, Widdin, 
* I , Sistova, Shumla, Tirnova. 

Bosnia .... Bosnaserai, Zvomik, Traunik. 
Turkish Croatia . Bania-louka, Bihacs. 

Turkish Dalmatia . Trcbigni, Mostar. 

Candia I Khanea or Canea, 

1 Betimo (b). 


Albania 
Bulgaria . 


Great changes have been effected by the Treaty of Berlin 
in the relations of the Porte to these divisions, some of which, 
it will be seen, have become autonomous Principalities. 
Boumelia, however, before this Treaty was rather a geogra- 
phical than a political designation — ^it has now become a 
distinct Province of Turkey, marked out by distinct metes 
and bounds. 

XCVe. By Article XIII. of the Treaty of Berlin a 

province is formed south of the Balkans which will take 
“ the name of * JEastern Roumelia,’ and will remain under 
“ tlie direct political and military authority of his Imperial 
“ Majesty the Sultan, under conditions of administrative 
“ autonomy. It will have a Christian Governor-General.” 

By Article XIY. Eastern Boumelia is bounded on the 
** north and north-west by Bulgaria, and comprises the ter- 
“ ritorics included by the following line.” The territories 
are then enumerated. 

By Article XV. “ His Majesty the Sultan will have the 
“right of providing for the defence of the land and sea 
" frontiera of the province by erecting fortifications on those 
“ frontiers, and maintaining troops there. 

“ Internal order is maintained in Eastern Boumelia by a 
“ native gendarmerie assisted by a local militia. 

“ Begard shall be had to the religion of the inhabitants 


(6) Librttrjf Atlae, p. 63. Edinburgh. 



BOUMELIA. 


135 


“ in respect to the composition of these corps, the officers 
<<of which are named by the Sultan, according to the 
localities. 

His Imperial Majesty the Sultan engages not to employ 
» irregular troops, such as Bashi-Bazouks and Circassians, 
in the garrisons of the frontiers. The regular troops deS' 
** tined to this service must not in any case be billeted on the 
** inhabitants. When they pass through the province they 
will not be allowed to sojourn there.” 

By Article XVI. “ the Governor-General will have the 
“ right of summoning the Ottoman troops in the event of 
“ the internal or external security of the province being 
“ threatened. In such an eventuality the Sublime Porte 
“ shall inform the representatives of the Powers at Con- 
stantinople of the decision, as well as of the exigencies 
“ which justify it.” 

By Article XVII. “ the Governor-General of Eastern 
“ Roumelia shall be named by the Sublime Porte, with the 
“ assent of the Powers, for a term of five years.” 

By Article XVIII., immediately after the exchange of 
“ the ratifications of the present Treaty, a European Com- 
mission shall be formed to elaborate, in accord with the 
“Ottoman Porte, the organization of Eastern Roumelia. 
“ This Commission will have to determine, in a period of 
“ three months, the powers and functions of the Governor- 
“ General, as well as the administrative system, judicial and 
“ financial, of the province, taking as its starting-point the 
“ different laws for the vilayets and the proposals made in 
“ the eighth sitting of the Conference of Constantinople. 

“The whole of the arrangements determined on for 
“ Eastern Roumdia will form the subject of an Imperial 
“ Eirman, which will be issued by the Sublime Porte, and 
“ which it will communicate to the Powers.” 

By Article XIX. “ the European Commission shall be 
“ charged to administer, in accord with the Sublime Porte, 
“ the finances of the province until the completion of the new 
“organization.” 



136 


INTBBNATJ^NAL LAW. 


By Article XX. th^^eaties, Conventions, and inter- 
“ national arrangements m ai^^Mnd whatsoever, concluded 
or to be concluded between the Porte and foreign Powers, 
“ shall be applicable in Eastern Bonmelia as in the whole 
Ottoman Empire. The immunities and privileges ac- 
“ quired by foreigners, whatever their position, shall be re- 
“ spected in this province. The Sublime Porte undertakes 
to have observed there the general laws of the Empire for 
“ religious liberty in favour of all forms of worship.” 

By Article XXI. “the rights and obligations of the 
“ Sublime Porte with regard to the railways of Eastern 
“ Boumelia shall be maintained in their integrity.” 

By Article XXII. “ the effective force of the Bussian 
“ corps of occupation in Bulgaria and Eastern Boumelia 
“ shall be composed of six divisions of infantry and two 
“ divi.sions of cavalry, and shall not exceed 50,000 men. It 
“ shall be maintained at the expense of the country occupied. 
“ The army of occupation will preserve its communications 
“with Bussia not only through Boumania, in accordance 
“ with arrangements to be concluded between the two States, 
“ but also through the ports of the Black Sea, Varna and 
“ Bourgas, where they may, during the period of occupation, 
“ organize the necessary depots. 

“ The period of the occupation of Eastern Boumelia and 
“ Bulgaria by the Imperial Bussian troops is fixed at nine 
“ months from the date of the exchange of the ratifications 
“ of the present Treaty. 

“The Imperial Bussian Government undertakes that 
“within nine months the passage of its troops across 
“ Boumania shall cease, and the Principality shall be com- 
pietely evacuated.” 

XCVf. Bosnia and Herzegovina . — By Article XXV. 
of the same Treaty it is provided that “ the Provinces of 
“ Bosnia and Herzegovina shall be occupied and administered 
“ by Austria-Hungary. The Government of Anstria-Him- 
“ gary , not desiring to undertake the administration of the 
“ Sandjakof Novi-Bazar, which extends between Servia and 



BULGi^KlA. 


137 


“ Montenegro in a soutb-eastcrljf' Section to the other side 
of Mitrovitza, the Ottoman ^m^lstration will remain in 
“ force there. Notwithstanding, in order to assure the main- 
tenance of the new political state of affairs, as well as freedom 
and security of communications, Austria-Hungary reserves 
<< the right of keeping garrisons and having military and com- 
“mercial roads in the whole of this part of the ancient 
“ Vilayet of Bosnia. With this object the Governments of 
“ Austria-Hungary and Turkey reserve to themselves to come 
to an understanding as to the details.” Austria has lost no 
time in effecting a military occupation of these provinces. 

XCVg. By Article I. of the same Treaty “ Bul- 
“ garia is constituted an autonomous and tributary Princi- 
“ pality under the suzerainty of his Imperial Majesty the 
“ Sultan. It will have a Christian government and a 
“ national militia.” 

By Article II. the Principality of Bulgaria will in- 
clude certain territories which are enumerated. 

By Aiiacle III. “ the Prince of Bulgaria shall be freely 
“ elected by the population and confinned by the Sublime 
“ Porte, with the consent of the Powers. No member of 
“ any of the reigning houses of the Great European Powers 
“ shall be elected Prince of Bulgaria. 

" In case of a vacancy in the princely dignity, the elec- 
“ tion of the new Prince shall take place under the same 
“ conditions and with the same forms.” 

By Article IV. “ an Assembly of Notables of Bulgaria, 
“ convoked at Tirnova, shall, after the election of the Prince, 
“ elaborate the organic law of the Principality.” 

In the districts where Bulgarians are intermixed with 
“ Turkish, Roumanian, Greek, or other populations, the 
“ rights and interests of these populations shall be taken into 
“ consideration in the question of election and the elabora- 
“ tion of the organic law.” 

Article V. on religious liberty is important (c). It pro- 


(c) Vide postf Art. Ixii. 



138 


INTEMAftOHAL LAW, 


Tides ^*that the following points shall form the basis of 
** the public lav of Bulgaria r 
** A difference of religious beliefs or confessions shall not 
exclude or incapacitate any person from the enjoyment of 
** civil and political rights, admission to public appointments, 
functions, or honours, or from the exercise of the various 
** professions and employments, in any district whatsoever. 

Liberty, and the public exercise of all religions, shall be 
assured to all persons belonging to Bulgaria, as well as to 
‘‘ strangers, and no obstacle shall be interposed either to the 
** hierarchical organisation of the different communions, or to 
** their connection with their spiritual heads.” 

By Article VI. “ the provisional administration of Bul- 
garia shall be under the direction of an Imperial Russian 
Commissary until the settlement of the organic law. 
An Imperial Turkish Commissary, as well as the Consuls 
delegated ad hoc by the other Powers Signatories of the 
** present Treaty, shall be called to assist in controlling the 
« working.of this provisional regime. In the event of dis- 
** agreement amongst the Consular Delegates, the majority 
shall decide, and in case of a divergence between the 
** majority and the Imperial Russian Commissary, or the 
** Imperial Turkish Commissary, the Representatives of the 
Signatory Powers at Constantinople, assembled in Con- 
“ ference, shall decide.” 

By Article VII. “ the provisional regime shall not be 
** prolonged beyond a period of nine months from the ex- 
** change of the ratifications of tlie present Treaty. 

When the organic law is completed the election of 
the Prince of Bulgaria shall be proceeded with forthwith. 
As soon as the Prince shall have been elected, the new 
“ organization shall be put into force, and the Principality 
shall enter into the full enjoyment of its autonomy.” 

By Article VIII. “the Treaties of Commerce and of 
“ Navigation, as well as all the Conventions and arrange- 
“ ments concluded between Foreign Powers and the Porte, 
“ and now in forc^ are maintained in the Principality of 



BULGARIA. 


139 


» Bulgaria, and no change shall he made in them with re- 
« gard to any one Power withb^ut its previous consent. 

*• No transit dues shall be levied in Bulgaria on goods 
« passing through that Principality. 

The subjects and citizens (* nationaux ’) and commerce 
« of all the Powers shall be treated in the Principality on a 
" footing of strict equality.” 

** The immunities and privileges of foreigners, as well as 
the rights of consular jurisdiction and protection as estab> 
'‘lished by the capitulations and usages, shall remain in 
** force so long as they shall not have been modified with the 
“ consent of the parties concerned.” 

By Article IX. ‘*the amount of the annual tribute 
“ which the Principality of Bulgaria shall pay to the Suze- 
" rain Court — such amount being paid into whatever bank 
** the Porte may hereafter designate — shall be fixed by an 
agreement between the Powers Signatory of the present 
** Treaty at the close of the first year of the working of the 
“ new organization. This tribute shall be reckoned on the 
" mean revenue of the territory of the Principality. 

As Bulgaria is to bear a portion of the public debt of 
the Empire, when the Powers shall fix the tribute they 
“ shall take into consideration what portion of that debt can, 
“ on the basis of a fair proportion, be assigned to the Princi- 
“ pality.” 

By Article X. ** Bulgaria takes the place of the Imperial 
“ Ottoman Government in its undertakings and obligations 
towards the Biustchuk-Yarna Bailway Company, dating 
“from the exchange of the ratifications of the present 
“ Treaty. The settlement of the previous accounts is re- 
“ served for an understading between the Sublime Porte, 
“ the Government of the Principality, and the administra- 
“ tion of this company. 

“ The Principality of Bulgaria likewise, on the other 
“ hand, takes the place of the Sublime Porte, in the engage- 
ments which it has contracted, as w'ell towards Austria- 
“ Hungary as towards the Company, for working the rail- 



140 


INTEBNATIONAL LAW. 


“ ways of European Turkey in respect to their completion 
** and connection, as well as for the working of the railways 
situated in its territory. 

** The Conventions necessary for the settlement of these 
“ questions shall be concluded between Austria-Hungary, 
the Porte, Servia, and the Principality of Bulgaria imme- 
diately after tlie conclusion of peace.” 

By Article XI. “ the Ottoman army shall no longer 
“ remain in Bulgaria ; all the old fortresses shall be razed 
“ at the expense of the Principality within one year or 
sooner if possible ; the local Government shall immc- 
“ diately take steps for their demolition, and shall not be 
allowed to construct fresh ones. 

The Sublime Porte will have the right of disposing as it 
‘‘ likes of the war material and other effects belonging to the 
Ottoman Government which may have remained in the 
“ fortresses of the Danube already evacuated in virtue of 
** the Annistice of the 3 1st January, as well .as of those in 
the strongholds of Shnmla and Varna.” 

By Article XI 1. Mussulman proprictons or others who 
“ may take up their abode outside the Principality can con- 
tinue to hold there their real property, by fanning it out, 
or having it administered by third parties. 

“ A Turco-Bulgarian Commission shall be charged with 
“ the settlement, in the space of two years, of all questions 
“ relative to the mode of alienation, working, or use, on the 
“ account of the Sublime Porte, of State property and rcli- 
" gious foundations {vakoufs), as well as of the questions 
** regarding interests of the individuals concerned therein. 

“ Persons belonging to the Principality of Bulgaria, who 
** shall travel or dwell in the other parts of the Ottoman 
“ Empire, will be subject to the Ottoman authorities and 
« laws.” 

XCVh. Article LXII. of this Treaty (d) upon the 
subject of Religious Liberty is important, having regard 


(d) Vide ante, Art, v., et vide fodt, chapter on Intervention, 


TURKEY. 


141 


to the right of Intervention which it may be maintained 
this Treaty gives to the Signatory Powers in the event of 
the infringement of its provisions. 

“ The Sublime Porte having expressed the wish to main- 
" tain the principle of religious liberty, and give it the 
widest scope, the contracting parties take note of this 
<< spontaneous declaration. 

“ In no part of the Ottoman Empire shall difference of 
“ religion be alleged against an individual as a ground for 
exclusion or incapacity as regards the discharge of civil 
and political rights, admission to the public service, func- 
“ tions and honours, or the exercise of the different profes- 
" sions and industries. 

“ All persons shall be admitted, without distinction of 
“ religion, to give evidence before the tribunals. 

“ Liberty and the outward exercise of all forms of worship 
are assured to all , and no hindrance shall be offered either 
“ to the hierarchical organisation of the various communions 
“ or to their relations with their spiritual chiefs. 

“Ecclesiastics, pilgrims, aud monks of all nationalities 
“ travelling in Turkey in Europe, or in Turkey in Asia, 
“ shall enjoy the same rights, advantages, and privileges. 

“ The right of official protection by the Diplomatic and 
“ Consular Agents of the Powers in Turkey is recognized 
“ both as regards the above-mentioned persons and their 
“ religious, charitable, and other establishments in the Holy 
“ Places and elsewhere. 

“ The rights possessed by France are expressly reserved, 
“ and it is well understood that no alterations shall be made 
in the status quo in the Holy Places. 

“ The Monks of Mount Athos, of whatever country 
“ they may be natives, shall be maintained in their former 
“ possessions and advantages, and shall enjoy, without any 
“ exception, complete equality of rights and prerogatives.” 

XCVi. The 68th Article may give rise to some conten- 
tion. It is somewhat vague, though by no means unim- 
portant. It is as follows 



142 


ISiTEBNATIONAL LAW. 


" The Treaty of Paris of March 30, 1866, as well as the 
Treaty of London of March 13, 1871, are maintained in 
all such of their provisions as are not abrogated or modified 
“ by the preceding stipulations.” 

XOYIII («). States that pay tribute, or stand in a feudal 
relation towards other States, are, nevertheless, sometimes 
considered as Independent Sovereignties. It was not till 
1818 that the King of Naples ceased to be a nominal vassal 
of the Papal See ; but this feudal relation was never con- 
sidered as afiPecting his position in the Commonwealth of 
States. Of the same kind some German Jurists appear to 
consider the subsisting or former relation between Knip- 
hausen and Oldenburg : but, in fact, it is a relation which 
can hardly be said to exist in these days, except where, as 
in the instances of the Barbary States, there is a direct and 
practical acknowledgment of a superior sovereignty. 


(e) §§ xevi. xcm in fomer editions are omitted. 


EGYPT. 


143 


CHAPTER Ha. 

EGYPT. 

XCIX. The status of Egypt with respect to her inter- 
national relation is very peculiar (a). 

The conquest of Egypt was effected by Amrou, the 
Greneral of the Caliphs, in 638 a.d., and from the death of 
Caliph Omar, in 644 A.D., it continued to be a province of 
the Arab empire under a Governor appointed by the 
Caliphs. This nominal subordination to the Caliphs ap- 
pears to have continued while the government de facto was 
in the hands of various dynasties, who reigned under the 
title of Soldan or Sultan of Egypt. The last Sultan of the 
Memlook dynasty of Egypt, which had been established 
about 1250 A.D., was overthrown in 1517 A.D., by Selim I., 
the Ottoman Sultan of Constantinople. 

About this time the last of the Caliphs in Egypt died ; 
the Caliphate of Egypt came to an end, and the title of 
Caliph was thenceforward assumed by the Sultan of Con- 
stantinople. Although Selim I. abolished the dynasty ol 
the Memlooks, he preserved an aristocracy of that race 
under the authority of the Viceroy, nominated by the Porte 
and designated Pacha of Egypt. 

By this new Constitution, 24 Beys were created ; and the 
obligation was imposed of sending tribute to Constantinople, 
and of furnishing 12,000 men in time of war. This quasi re- 
public, composed of a Memlook aristocracy, was not wholly 
abolished till after the period of the French invasion, at the 
close of the last century. During this interval, however. 


(«) From The Charkieh L. R. 4 Adm. & Eocl. p. 76 teq. 



44 


niTTERNiLTIONAL LAW. 


successful chieftains continually revolted from the Porte, 
and the more powerful of the Beys exercised absolute 
dominion over the country. In 1747 A.D. Ibrahim Kehia 
seized upon the supreme authority and declared the inde- 
pendency of Egypt. In 1758 A.D., Ali Bey, not the least 
remarkable of the warriors who rose to the surface in those 
troubled times, possessed himself of the government of 
Egypt, and ruled over that country some time with an ap- 
pearance of deference to, and a recognition in the abstract 
of the sovereignty of the Porte, up to the period of 1774 a.d., 
when his eventful career was ended. In 1798 a.d., the in- 
vasion of Egypt by Buonaparte took place under the pre- 
text of delivering Egypt from the Memlooks. In 1801 a.d. 
the victories of England once more restored Egypt to the 
dominion of the Porte. 

In 1806 A.D., an important epoch begins. In that year 
Mehemet Ali obtained from the Sultan a legal nomina- 
tion to the Pachalic of Egypt, the actual authority of which 
he was already exercising. After the departure of the 
English from Alexandria, and the massacre of the Mcmlook 
Beys, Mehemet took the command of forces previously 
sent by him into Arabia, to subdue the sect of the Waha- 
bees. During the interval between this period and 1831 a.d. 
he possessed an army of 60,000 men, and a considerable 
navy, established a de facto empire from Senaar and Kadofan 
over all Syria to Adana, a part of Cilicia at the foot of 
Mount Taurus, and ruled over the island of Candia. The 
Porte, struggling with the rebellion of the Pacha of lanina, 
not subdued till 1822 A.D., and the uprising of the Greeks, 
whose liberties were established by the battle of Navarino 
in 1827 A.D., opposed a fitful, underhand, and feeble oppo- 
sition to the continued practical aggression, however dis- 
guised in language, of its great subject. 

Between the battle of Navarino (1827 a.d.) and the 
Treaty, presently to be mentioned, of 1833 a.d., an impor- 
tant portion of Egyptian history intervenes. Mehemet 
Ali, on being refused the Pachalic of Acre by the PortCj 



EGYPT. 


14 


found various pretexts for the invasion of Syria, on the 
actual possession of which, it was manifest, the supremacy of 
the Porte or of the Khedive of Egypt would depend. 

In 1831 A.D., the Egyptian army and Ibrahim Pacha 
passed the frontier. As soon as the Porte was apprised of 
this event, an order was immediately despatched to Me- 
hemet Ali to recall his troops. To these and further 
orders he turned a deaf ear. An official declaration of war 
against him, preceded by a religious anathema or public 
declaration that he and his sons were rebels, and out of the 
pale of Mussulman law, did not stop his course. 

In May 1832, Acre was captured by his troops. Not 
long afterwards all Sjria was conquered for him by Ibrahim, 
his general and son. The armies of the Porte were routed 
and destroyed, and the advance of the conqueror upon Con- 
stantinople was only prevented by the intervention of the 
great European Powers. Nevertheless, by a kind of con- 
vention, usually called the treaty of Kutaieh, between the 
Sultan and Mehemet, the latter obtained a great addition 
of power and territory ; for he retained possession of Syria 
and the passes of Mount Taurus, or the district of Adana. 
He undertook, indeed, to pay tribute for Syria, as well as 
Egypt ; but, with his army and navy untouched, and with 
tliese possessions, the Pacha of Egypt was allowed to re- 
main, in fact, more powerful than his nominal master at 
Constantinople. 

But in the interval between 1833 a.d. and 1841 a.d. 
the scene is greatly changed. The actors remain, but play 
very different parts. 

Nor is it unimportant to observe, that the stream of 
Egyptian political history, however immiscible the characters 
of the individual Mohammedan and Christian may be, has 
ever since this epoch been greatly affected by the currents 
of European diplomacy. I pass by earlier treaties, and the 
Treaty of Unkiar Skelessi in 1833 a.d., which, placing 
Turkey under the protectorate of Russia, has been super- 
®®ded by a later Treaty. Mehemet Ali and Ibrahim, in 

VOL. 1. T 



146 


INTERNATIONA!, LAW. 


1834 A.!)., pursued the scheme of uniting all the provinces 
belonging to the caliphate under their government ; but dis- 
contents arose among the natives of Syria, which were not 
appeased by the disarmament of the Druses and of the 
population generally. These discontents revived the hopes 
of the Sultan, and in 1839 A.D., he sent another army into 
Syria, which was defeated at Kezib. But in 1840 a.d., 
Mehemet Ali was made aware that the European Powers 
would not allow an Arab empire to be established on the 
ruins of the Ottoman State. 

England sent an agent to warn the Pacha of his danger, 
and, in answer to a statement of his rights, the following 
language was used : “ I have to instruct you,” said Lord 
Palmerston to Colonel Hodges, the agent employed, “ on 
the next occasion on which Mehemet Ali shall speak to 
“ you of his lights, to say to his Highness, that you are in* 
“ structed by your Government to remind him that he has no 
rights except such as tlic Sultan has conferred upon him ; 
that the only legitimate authority which he possesses is 
“ the authority which has been delegated to him by the 
“ Sultan over a portion of the Sultan’s dominions, and which 
“ has been entrusted to him for the sole purpose of being 
“ used in the interest and in obedience to the orders of the 
Sultan ; that the Sultan is entitled to take away that 
‘‘ which he has given ; that the Sultan may probably do so 
if his own safety should require it; and that if in such 
** case the Sultan should not have the means of self-defence, 
the Sultan has allies, who may possibly lend him those 
“ means ” ( 6 ). 

And on July 18, 1840, Lord Palmerston wrote to 
Colonel Hodges as follows : “ You will see that orders have 
“ been given to the British fleet to act at once, by cutting 
** off the communication between Syria and Egypt, and by 
helping the Syrians. If Mehemet Ali should complain of 

{b) Corre^Mndenee rdntmg to the Afftdrt of the LewaU, pteaewtei to 
Parliament m 1841. Part 1. p. 602. 



EGYPT. 


147 


this, and of its being done without notice, you will remind 
‘‘ him civilly that we are the allies of the Sultan, and have 
a right to help the faithful subjects of the Sultan in main*- 
** tuning their allegiance, and to assist the Sultan against 
‘Hhose of his subjects who are in revolt against him, as 
Mehemet Ali is ; and that Mehemet All not being an 
“ independent Sovereign with whom the four Powers have 
any political relations, those Powers are not bound to give 
“ him any notice of their intended proceedings ” (c). 

And again on September 14, 1840, Lord Palmerston 
wrote: “With reference to your despatch of the 17th 
“ of August, I have to instruct you to state in writing to 
“ Mehemet Ali, if the state of things should render it neces- 
“ sary to do so, that Egypt is a portion of the dominions of 
“ the Sultan ; that British subjects have certain rights and 
“ privileges as to the security of their persons, property, and 
“ commerce in all parts of the Ottoman Empire, by virtue 
“ of treaties concluded between the British Crown and the 
“ Porte } and that any subject of the Sultan, whether in a 
“ state of obedieuce to, or of revolt against the authority 
“ of the Sultan, who should take upon liimself in any way 
“ or in the slightest degree to molest British subjects, or to 
“ interfere with the exercise of their rights and privileges, 
“ would incur a heavy and most serious responsibility ”(d). 

The principles of international policy enunciated in these 
despatches were fully carried into execution by the Con- 
vention of July 15, 1840, by which Austria, England, 
Prussia, and Bussia concurred in the determination to pro- 
tect the Porte by coercive measures, if necessary, against 
the Pacha. Whether the Pacha should be a Sovereign 
Prince, or a subject, however powerful, of the Porte, seems 
to have depended on the result of this war. But the 
consequence of this European intervention was the rapid 


(c) Cmre^ondeaee rdating to the Affain of the Levant, pretented to 
(<0 Hid. Part II. p. 187. 



148 


INTEJiNATlONAL LAW. 


overthrow of the Pacha’s power in Syria; after which the 
Sultan issued to the Pacha the Firman of February 13^ 1841. 

In 1849, Mehemet AU, having ceased to rule, on account 
of imbecility, in the preceding year, died, and was succeeded 
by Abbas, who died in 1854 a.d. ; to him succeeded Said, 
who died in 1863 A.D., and to him succeeded the present 
Khedive. In 1866, 1867, 1869 A.D., circumstances induced 
the Forte to issue additional Firmans. In these documents, 
as well as in the Firman of 1841, and a further Firman in 
1873 {e), granted after the judgment in The Ckarkieh, are to 
be found the existing relations between the Porte and the 
Pacha of Egypt, now called the Khedive. The principal 
and most im})ortant of these relations may be said to form 
part of the present public law of Europe. 

The result of the historical inquiry as to the status of his 
Highness the Khedive, instituted in the case of The Chur- 
kieh, was as follows : That in the Firmans, whose authority 
upon this point appears to be paramount, Egypt is invari> 
ably spoken of as one of the provinces of the Ottoman 
Empire ; that the Egyptian army is regulated as part of 
the military force of the Ottoman Empire ; that the taxes 
are imposed and levied in the name of the Porte ; that the 
Treaties of the Porte are binding upon Egypt, and that 
she has no separate jus legationis ; that the flag for both 
the army and navy is the flag of the Porte. 

All these facts, according to the unanimous opinion of 
accredited writers, are inconsistent and incompatible with 
those conditions of sovereignty which are necessary to entitle 
a country to be ranked as one among the great community 
of States. 

In accordance with these facts and the principles dedu- 
cible from them, the Court of Admiralty decided in 1873, 
in the case of The Charkiekf that the sMp of the Khedive 
was not entitled to the privileges of a vessel of war belonging 
to an independent State. 


(e) Printed at length in the Journal des LSbaU, July 7, 1873. 



EGYPT. 


149 


On November 3, 1839, the Porte published an Ordinance 
for the regulation of its provinces and of its vassal States, 
called Hatti~ Sheriff of Gulhane. This Haiti- Sheriff vtm 
followed by the promulgation of a collection of Laws called 
the Tanzimat, and this, with certain modifications, has been 
applied to Egypt hyo. Firman decore eTun Haiti- Sheriff (/), 
of July 1852. This Firman appears to overrule the Code 
(f Abbas, which had been established in Egypt. 

This Firman can hardly be said to affect the Interna- 
tional relations of the Pacha ; the principal derogation from 
the sovereignty of the latter consisting in the reservation to 
the Sultan of the power as to life and death over the subjects 
of the Pacha. 

In the Se])arate Act annexed to the Convention, concluded 
at London on July 15, 1840, between the Courts of Great 
Britain, Austria, Prussia, and Russia on the one part, and 
the Sublime Ottoman Porte on the other, the International 
Status of Egypt is described in the following articles : — 

1. His Highness promises to grant to Mehemet Ali, 
“ for himself and for his descendants in the direct line, the 
“administration of the Pachalic of Egypt; and his High- 
“ ness promises, moreover, to grant to Mehemet Ali for his 
“ life, with the title of Pacha of Acre, and with the com- 
“ mand of the fortress of Saint John of Acre, the administra- 
“ lion of the southern part of Syria, the limits of which shall 
“ be determined by the following line of demarcation ; — 

“ This line, beginning at Cape Ras-el-Nakhora, on the 
“ coast of the Mediterranean, shall extend direct from thence 
“ as far as the mouth of the River Seizaban, at the northern 
“ extremity of the Lake of Tiberias. It shall pass along Ihe 
“ western shore of that lake. It shall follow the right of the 
“ River Jordan and the western shore of the Dead Sea. From 
thence it shall extend straight to the Red Sea, which it 
“ shall strike at the northern point of the gulph of Akaba ; 

(/) It descri1)es itself as — “ Firman odress^ d mou illustie et jndicieux 
vizir Abbas 'Holmi Pacha, actuelleincut et hdr^ditairemeat Gouvemeur 
de I'Egypte, avec le rang dmineut de Grand Vizir.” 



150 INTEBNATIONAL LAW. 

and from thence it shall follow the western shore of the 
<*gnlph of Akaba and the eastern shore of the gulph of 
“ Suez, as far as Suez.” 

“3. The annual tribute to be paid to the Sultan by 
Mehemet Ali shall be proportioned to the greater or less 
“ amount of territory of which the latter may obtain the 
administration, according as he accepts the first or the 
" second alternative.” 

"5. All the Treaties and all the laws of the Ottoman 
** Empire shall be applicable to Egypt and to the Pachalic 
of Acre, such as it has been above defined, in the same 
“ manner as to every other part of the Ottoman Empire. 
“ But the Sdltan consents, that on condition of the regular 
“ payment of the tribute above mentioned, Mehemet Ali 
and his descendants shall collect — in the name of the 
" Sultan, and as the delegate of his Highness, within the 
provinces the administration of which shall be confided to 
“ them — the taxes and imposts legally established. It is more- 
“ over understood that, in consideration of the receipt of the 
** aforesaid taxes and imposts, hlehcmet Ali and his descen* 
** dants shall defray all the expenses of the civil and military 
administration of the said provinces. 

" 6. The military and naval forces which may be main- 
" tained by the Pacha of Egypt and Acre, forming part of 
“ the forces of the Ottoman Empire, shall always be con- 
“ sidered as maintained for the service of the State ” (y). 

Recently the Sultan and the Turkish Government were 
alarmed and offended by what they conceived to be conduct 
on the part of the Viceroy or Khedive, indicating a claim 
on his part to be treated as an independent Sovereign. 
This alarm, it is supposed, was partly founded on the re- 
ception of the Viceroy, by the different Courts of Europe, 
on his visits to them ; on his invitation to foreign Powers to 
be present at the opening of the Suez Canal ; on certain 
steps which he had taken to attract strangers, and to found 


(jr) JBertdet'a Treatietf vol. v. pp. 647-649. 



EGYPT. 


151 


commercial establishments in Egypt, and on certain regu- 
lations with respect to the institution of schools ; and also 
on account of the purchase of vessels and ammunition of war. 

The Turkish Minister addressed a letter of complaint upon 
these and other subjects to the Viceroy, in reply to which 
he denied that he had ever gone ** beyond the limits of the 
<< rights and duties prescribed by the Imperial Firmans.*’ 
The Forte, however, insisted upon certain conditions, which, 
after diplomatic intervention, the Viceroy accepted (A). 

XCIXa. Suez Canal (i). — The recent war between 
Russia and the Forte brought out into a clear light the neces- 
sity for some determination on the part of the European, and 
perhaps of the American States, with respect to the interna- 
tional position of the Suez Canal in time of war. As a matter 
of fact, that great highway of communication to the East 
remained unimpeded by the blockade of either belligerent. 

The course adopted by England is best explained by the 
following correspondence between the English Foreign 
Office and the English Ambassador at the Porte (J). 

“ The Bari of Derby to Lord Lyons, 

“Foreign Office, May Ifi, 1877. 

“ My Lord, — M. de Lesseps called upon me at the 
“ Foreign Office on the 10th inst., having, as he stated, come 
“ expressly from Paris to lay before her Majesty’s Govem- 
“ ment a project for regulating the passage of ships of war 
“ through the Suez Canal. 

“ I received him in company w'ith the Chancellor of the 
“ Exchequer, and he handed to me the draught project of 
“ which I enclose a copy. 

After some conversation, I told him that the question 
“ of the position of the Suez Canal under present circum- 
“ stances was a difficult and delicate one, and that I could 

(A) See the Viceroy’s defence at length, Aim. Iteg, 1869, p. 273. 

(*; See debates in the House of Commons, May 4, 1877. 

G) Papers laid before Farliaiuent, Jime 6, 1877 ; The I’imee, June 6. 



152 


INTEBNATIONAL LAW, 


** not then say more than that the project which he had 
** been good enough to sul^mit to me should have full con> 
“ sideration. 

Her Majesty’s Government have since carefully con* 
sidered the project, and have come to the conclusion that 
“the scheme proposed in it for the neutraliza^n of the 
“ Canal by an International Convention is open to so many 
“ objections of a political and practical character that they 
“ could not undertake to recommend it for the acceptance of 
“ the Porte and the Powers. 

“ Her Majesty’s Government are, at the same time, 
“ deeply sensible of the importance to Great Britain and 
“ other neutral Powers of preventing the Canal being in- 
“ jured or blocked up by either of the belligerents in the pre- 
“ sent war, and your Excellency is at liberty to inform M. 
“ de Lesseps that her Majesty’s Government has intimated 
“ to the Bnssian Ambassador that an attempt to blockade or 
“ otherwise to interfere with the Canal or its approaches would 
“ be regarded by her Majesty’s Government as a menace to 
“ India, and as a grave injury to the commerce of the world. 
“ I added that on both those grounds any such step — which 
“ her Majesty’s Government hope and fully believe there is no 
“ intention on the part of either belligerent to take — would 
“ be incompatible with the maintenance by her Majesty’s 
“ Government of an attitude of passive neutrality. 

“ Her Majesty’s Government will cause the Porte and 
“ the Khedive to be made acquainted with the intimation 
“ thus conveyed to the Russian Government, and her Ma- 
jesty’s Ambassador at Constantinople and Agent in Egypt 
“ will be instructed to state that her Majesty’s Government 
“ will expect that the Porte and the Khedive will on their 
“ side abstain from impeding the navigation of the Canal, 
“ or adopting any measures likely to injure the Canal or its 
“ approaches, and that her Majesty’s Government are firmly 
“ determined not to permit the Canal to be made the scene 
“ of any combat or other warlike operations. 

“ In stating this to M. de Lesseps, your Excellency will 



EGYPT. 


153 


<< explain that her Majesty’s Government have thus taken 
“the initiative in regard to the protection of the Canal 
“ on account of the pressing necessity, as regards British in- 
“ terests, of maintaining the security of the Canal, and they 
“ do not doubt that if the Canal were to be seriously 
“ menaced^ the French and other Governments would adopt 
“ a similar course. — I am, &c. 

“ Derby.” 

“ Memorandum by M. de Lesseps. 

“ The very clear declaration made by the English Go- 
“ vernment to the two Houses of Parliament of its resolu- 
“ tion to maintain the freedom of the passage of the Suez 
“ Canal for its men-of-war has led me to believe that there 
“ might now be an opportunity of concluding an agreement 
“ with other Governments on this subject. 

“ As President of the Financial Company with which Eng- 
“ land is connected, 1 submit to Lord Derby a project simply 
“ expressing my personal views, which I have reason to be- 
“lieve the Due Dccazes would be disposed to adhere to 
after a private conversation which I had with him yester- 
**' day morning. 

Should the British Minister not think it well to initiate 
negotiations with the other Cabinets, I would make, at 
“ Paris, to the representatives of the several Powers in- 
“ terested, the overtures which I have made to Lord Derby 
“ and the Due Decazes. 

“ Feed, de Lessees. 

“ London, May 10, 1877.” 

“ International Agreement as to Passage of Skips of War 
through the Suez Canal” 

“ Since the opening of the Suez Canal in 1869 the com- 
“ plete liberty of passage through the Maritime Canal and 
” the ports connected with it has been respected for State 
, vessels as well as for merchant ships, even on the part of 
belligerent Powers at the time of the Franco-German 
“War. 



154 


1KTEBI7ATI0NAL LAW. 


" The Goveraments of * * * now agree to maintain the 
** same liberty to all national or commercial vessels, whatever 
**may be their flag and without any exception, it being 
** understood that national ships will be subject to the mea- 
“ sures which the territorial authority may take to prevent 
“ ships in transit from disembarking on Egyptian territory 
any troops or munitions of war.” 

“ The Earl of Derby to Mr. Layard. 

“ Foreign Office, May 16. 

“ Sir, — I transmit to your Excellency herewith a copy of 
** a despatch which I have addressed to her Majesty’s Am- 
“ bassador at Paris, respecting a project, of which a copy is 
“ also inclosed, communicated to me by M. de Lesseps, for 
** the neutralization of the Suez Canal. 

“ Your Excellency will see that Her Majesty’s Goveru- 
“ ment have declined to adopt that project, but have in- 
** formed M. de Lesseps of the intimation made by her 
** Majesty’s Government to the Russian Ambassador that 
“ an attempt to blockade or otherwise to interfere with the 
" Canal or its approaches would be regarded by her 
Government as a menace to India, and as a grave injury 
“to the commerce of the world, and that on both these 
“ grounds any such step — which her Majesty’s Government 
“ hope and fully believe there is no intention on the part of 
“ either belligerent to take — would be incompatible with the 
“ maintenance by her Majesty’s Government of an attitude 
“ of passive neutrality. 

“ I have to request your Excellency to acquaint the 
** Porte with the intimation thus conveyed to the Russian 
“ Government, and to state that her Majesty’s Government 
“ will expect that the Porte and the Khedive will, on their 
“ side, abstain from impeding the navigation of the Canal, or 
** adopting any measures likely to injure the Canal or its 
“ approaches, and that her Majesty’s Government are firmly 
“ determined not to permit the Canal to be made the scene 
“ of any combat or other warlike operations. 



EGYPT. 


155 


“ I have addressed a similar despatch to her Majesty’s 
» Agent and Consul-General in Egypt. I am, &c. 

Debby.” 

The Suez Canal was not blockaded during the war, but 
it would be diiScult to deny that if Russia, against whom 
the Khedive had furnished his quota of troops acting in the 
Ottoman army, had thought fit to adopt this mode of har- 
assing her belligerent, she would not have been within 
her right in so doing. Custom and prescription indeed, as 
well as positive agreement, may clothe with the sanction of 
International Law such a position as England has assumed : 
a positive international agreement may effect this end more 
speedily. But it cannot be admitted that the might of one 
State can make the right in this matter. England also 
declared that she would not allow the Canal to be the scene 
of any combat or warlike operation. But she did not assert 
or Imply that both the public and private ships of Russia 
would not be entitled to what Jurists call an innocent passage 
through the Canal. It w'as implied that, once in the Canal, all 
ships would be in neutral waters, but it was not denied that 
either belligerent might prevent the other from entering this 
neutral spot by combat in the open sea constituting the 
approach to the canal (k). 

The neutrality of the Persian Gulf was, I believe, de- 
clared by Russia. 


(A) Question put by Sir W. llarcourt in the House of Oonunons, Juno 
7, 1877. 



156 


INTERNATIONAL LAW. 


CHAPTER III. 

STATES UNDER A FEDERAL UNION. 

C. We now arrive at the second branch of this part of 
our subject— namely, the consideration of several States 
under a Federal Union. The examples in modern times of 
this description of States are the following : — 

1. The Germanic Confederation (JDcr Deutsche Burnt) (a), 

the North German Confederation from 1866 to 1871, 
the German Empire since 1871. 

2. The Confederated Cantons of Switzerland. 

3. The United Republics of North America. 

4. The United Republics of Central and South America : 
— namely, first. The United Provinces of Guatemala, or the 
Republic of Central America; secondly. The United Pro- 
vinces of Rio de la Plata, or the Argentine Republic. 

Cl. States under a Federal Union may be classed 
under two principal heads: — First. Those which have 
retained their Independent and Individual Sovereignty, 
especially as to the adjustment of their external relations 
with other Nations, and belong to a system of Confederated 
States only for purposes of domestic and internal policy, and 
of mutual assistance and defence (Staatenbund) (5). 

But the Laws of this Federal Body have only effect and 
force in the separate members of the system through the 
agency and application of the particular laws and jurisdiction 

(a) Deutsches Stoats- md Sundesrecht van Zacharid, erster Thai, 
Eap. L B. 21 {Gottingm, 1841): ‘^Von dem zusammengesetzten Staate, 
der TTnioii, und dem ToUmrreclitlichen Staatenvereine.” 

(i) Zachmd, ib. B. i. Kap. i. s. 21. The other class is aptly desig- 
nated Bundesstaat, 



STATES UKDEB A FEDEUAL UNION. 


157 


of e » cl> individual Government ; therefore, as far as Foreign 
Power is concerned, these Confederated States must be coU' 
sidered as individually responsible for their conduct, and as 
separate Independent States. In this class must be ranked 
the existing Germanic Confederation. 

Secondly. The Federal Union may be so adjusted that 
the management of the external relations of the respective 
members of the Union be absolutely vested in a Supreme 
Federal Power. 



158 


INTEBNATIOKAL LAW, 


CHAPTER IV. 

GERMAN CONFEDERATION AND EMPIRE. 

GII. The history of the Germanic Confederation has 
had an important bearing on the general system of Inter- 
national Law, and of the public law of Europe. It has 
undergone a complete revolution since the first publication 
of this volume. Nevertheless it has seemed to me for 
various reasons expedient to add to rather than omit what 
had been then written. 

The complete study of this subject requires a division of 
it into at least five epochs — 

1. The original institution of the Confederation. 

2. The remodelling of it in the year 1806. 

3. The change effected by the Treaties of Vienna, 1815, 
1820. 

4. The entire destruction of this Confederation by Prussia, 
and the erection of a new Confederation of Northern Ger- 
many in 1866. 

5. Constitution of the German Empire, April 16, 1871- 

CHI. (1) The ancient Germanic Empire (a), august and 

venerable for many reasons to the student of International 
Jurisprudence and Public Law, was virtually destroyed by 
Napoleon’s Confederation of the Rhine, and must be con- 
sidered as formally extinguished by the Act (i) of Abdication 

(a) Detdtehes Staati- und BundesrecM, ZachariS, Bond i. Kap. ii. 

Zeit des Beutschen B^chs,” Von dm OetamUtchaftrechte detDeuttchen 
Bumdeg, Miruu, L p. 623. Vattd, ii. p. 338, s. 60. 

(h) See the Act, Mariem' Bee, det TraiUs, viii. p. 408 ; Wheetodg 
Hutory, p. 70 ; HoUam'g Middle Agee, voL ii. c. 6 ; Koch, HiAoire d^ 
TrtdUt, c. i. s. 1 (par StMOi), The Germanic Constitution, and still 



GEBMAK CONFEDEBATION. 


159 


of the Emperor Francis, in August 1806. (2) By this Act 
the Electors were absolved from their duty to him as head 
of the Empire, and his ovru German dominions were incor- 
porated into the Austrian States, over which he henceforth 
ruled as Emperor of Austria. 

CIV. The Germanic Confederation is to be distinguished 
from those confederated States which have indeed an Inde- 
pendent* National Government, but have also a Central 
Federative Government which cx)nducts the International 
relations of the Confederacy. 

The deliberations of the Germanic Confederacy were con- 
ducted by a Diet, which sat at Frankfort-on-the-Main, and 
was the established organ of the Confederacy, and the permit* 
nent congress of the plenipotentiaries of the States which 
were members of it (c). 

It did not interfere with the internal arrangements of the 
individual members of the Confederacy, except in so far as 
they affected the general interests of the Avhole body ; and 
each of these members communicated directly, and not 
through the medium of a central Goveniment, with the 
Governments of Foreign Nations. 

CV. (3) The Treaties which must be consulted upon 
this subject are — The Treaty of Vienna, 1816 — the Annexes 
to that Treaty ; the Acte final ( Wiener Schlussacte) signed 
at Vienna May 15, 1820; the Lot organique, which settles 
the military constitution of the Confederation ; tlie Act of 
the Diet of June 28, 1832, and of October 30, 1834. 

By the fourth, fifth, and sixth articles of the Act which 
settled the Constitution of the German Confederation at the 
Congress of Vienna, it was provided. That, in the Fede- 
rative Diet, all the members vote by their plenipotentiaries, 
either individually or collectively ; — 


more tiie Medieval Councils of the Church, are the institutions which 
in theory, made the nearest approach which perhaps the world has 
wer seen to an Universal International Tribunal. 

W Zwshan&, ih. Ui. se. 223 , 11 ; ss. 261 , 1 . 



160 INTERNATIONAL LAW. 

Austria presides over the Diet. Each State has a right 
to make propositions, under limitations as to time fixed by 
the President. Whenever Fundamental Laws are to be 
proposed or altered, when Organic Institutions or other 
arrangements of a common interest are to be adopted, the 
Diet resolves itself into a General Assembly. 

CVI. By the sixth article of the Treaty of Paris (1814), 
it wiU3 stipulated that “ the States of Germany should be 
“ independent, and united by a Federal League.” 

By the Federal Act (d) of 1815, the possessions of those 
Sovereigns and Free Towns “ which had anciently apper- 

tained to the German Empire ” were anew incorporated 
into a League, entitled The German Confederation ”(e). 

By the eleventh article of the Annexe to the Treaty, it 
was provided, that — 

“(Art. 11.) The States of the Confederation bind them- 
“ selves to defend, not only the whole of Germany, but also 
“ each individual State of the Union, in case it should be 
“ attacked, and mutually guarantee all their possessions in- 
“ eluded in this Union. 

“ When war is declared by the Confederation, no member 
“ can engage in separate negotiations with the enemy, nor 
“ make peace, or a truce, without the consent of the others. 

The members of the Confederation, whilst reserving to 
“ themselves the right of forming alliances, bind themselves 
“ not to contract any engagement which shall be directed 
“ against the security of the Confederation, or of the indi- 
“ vidual States of which it is composed (/). 

“ The Confederated States bind themselves not to make 

war against each other under any pretext, and not to pro- 
“ secute their controversies by force of arms, but to submit 
“ them to the Diet, which shall endeavour to mediate through 
“ the medium of a Commission ; and if this fail, and a judicial 

(<t) See Annexe 9 of the Fiiisl Act of the Oongress of Vienoa. 

(«) Martens, Nouv. Sec. ii. p. 616. 

(/) This danse is not in the body of the I^eaty ; see s. 03. 



161 


GEBMAK CONFEDERATION. 

(t sentence be necessary, it shall be obtained by an Austreijal 
« Tribunal {Austregal Instanz) properly constituted, from 
« which there shall be no appeal ” (g). 

The Act of 1815, so incorporated in the Treaty of Vienna, 
was completed by the First Act of 1820 (May 15). This 
Act contains the following articles as to their Mutual Inter- 
national relations Qi) 

“ Art. 1. The Gerroanic Confederation is an International 
“ union (volkerrechtlicher Verein) of sovereign princes and 
« free cities of Germany, for the preservation of the inde- 
“ pendence and inviolability of the States comprised in the 
“ Confederation, and for the maintenance of the internal and 
“ external security of Germany. 

“ Art. 2. This union is, in its relations, a self-subsisting 
« Association of States, mutually independent of one another, 
“ with equal reciprocal rights and obligations ; but, in its 
“ external relations, a collective power combined in political 
“ unity. 

“ Art. 3. The extent and limits which the Confederation 
“ has marked out for its operation are defined by the Federal 
“ Act, which is the original compact and first groundwork of 
“ this union ; whilst it announces the object of the Confede- 
ration, it provides and determines at the same time its 
“ powers and obligations. 

“Art. 4. The power of developing and perfecting the 
“ Federal Act, so far as the completion of the object therein 
“ set forth may require, belongs to the assembly of the mem- 
“ bers of the Confederation. The resolutions, however, to 
“ be adopted for this purpose may not contravene the spirit 
“ of the Federal Act, nor deviate from the fundamental 
character of the Confederation.” 
evil. The following articles respect the International 
relations of the Confederation with other States, both with 


is) Amexe to the Treaty, De M. et de C. i, p. 146. 

(A) Confederation Germanique. — De Martens et de CustUf Bee. de 
raitfy, &e. vol. iii. pp. 468, 4^ Wheaton’s History, p. 446. 

VOL. I, 


162 


INTERN AT JONAL LAW. 


respect to its corporate capacity, and with respect to the in- 
dividual members under its protection. And, first, it should 
be observed, that by the fiftieth article of the Acte final 
(^Wiener ScMussacte) of 1820, it is provided; 

** That, with respect to Foreign Afiairs in general, it is 
the duty of the Diet — 

I. As the organ of the Confederation, to watch over 
^^the maintenance of peace and amicable relations 
** with Foreign States. 

“ 2. To receive the Envoys accredited by Foreign States 
“ to the Confederation, and to nominate, if it should 
he thought necessary, Ministers to represent the 
Confederation at Foreign Courts, f 

“ 3. To conduct, when it may be necessary, negotiations, 
and conclude treaties on behalf of the Confedcra- 
« tion. 

4. To interpose with Foreign States good offices on 
“ behalf of those members of the Confederation who 
“ desire them, and to employ the same agency with 
“ the separate States, members of the Confederation, 
“ on behalf of Foreign Govenunents who ask for 
“ such intervention.” 

By the thirty-fifth article it is declared, that “ the Gcr- 
“ manic Confederation has the right, as a collective body, 
“ to declare war, make peace, and contract alliances, and 
“ negotiate treaties of every kind ; nevertheless, according 
“ to the object of its institution, as declared in the second 
“article of the Federal Act, the Confederation can only 
“ exercise these rights for its own defence, for the mainten- 
“ ance of the external security of Germany, and the inde- 
“ pendence and inviolability of each of the States of which 
“ it is composed. 

“ Art. 36. The Confederated States having engaged, by 
“ the eleventh article of the Federal Act, to defend against 
“ every attack Germany in its entire extent, and each of its 
“ Co-States in particular, and reciprocally to guarantee the 
“ integrity of their possessions, comprised in the union, no 



GERMAN CONFEDERATION, 


163 


« one of the Confederated States can be injured by a Foreign 
« Power, without at the same time, and in the same degree, 
« affecting the entire Confederation. 

<< On the other hand, the Confederated States bind them- 
« selves not to give cause for any provocation on the part of 
« Foreign Powers, or to exercise any towards them. In case 
“ any Foreign State shall make a well-grounded complaint 
« to the Diet of an alleged wrong committed on the part of 
“ any member of the Confederation, the Diet shall require 
« such member to make prompt and satisfactory reparation, 

“ and take other necessary measures to prevent the disturb- 
“ ance of the public peace. 

“Art 3# Where differences arise between a Foreign 
“ Power and any State of the Confederation, and the inter- 
“ vention of the Diet is claimed by the latter, that body shall 
“ examine the origin of the controversy, and the real state of 
“ the question. If it results from this examination that such 
“ State has not a just cause of complaint, the Diet shall 
“ engage such State, by the most earnest representations, to 
“desist from its pretensions, shall refuse its intervention, 
“ and, in case of necessity, take all proper means for pre- 
“ serving peace. Should the examination prove the contrary, 
“ the Diet shall employ its good offices in the most efficacious 
“ manner, in order to secure to the complaining party com- 
“ plete satisfaction and security. 

“ Art. 38. Where notice received from any member of 
“ the Confederation, or other authentic information, renders 
" it probable that any of its States, or the entire Confede- 
“ ration, are menaced with a hostile attack, the Diet shall 
“ examine into and pronounce without delay upon the ques- 
“ tion whether such danger really exists ; and if determined 
“ in the affirmative, shall adopt the necessary measures of 
“ defence. 

“ This resolution and the consequent measures are deter- 
“ mined in the Permanent Council by a plurality of votes. 

“ Art. 39. When the territory of the Confederation is 
“ actually invaded by a Foreign Power, the state of war is 



154 


INTEBNATIONAL LAW. 


" The Govemmenta of * * * now agree to maintain the 
** same liberty to all national or commercial vessels, whatever 
"may be their flag and without any exception, it being 
" understood that national ships will be subject to the mea- 
" sures which the territorial authority may take to prevent 
ships in transit from disembarking on Egyptian territory 
" any troops or munitions of war.” 

" The Earl of Derby to Mr. Layard. 

“ Foreign Ottlce, May 16. 

" Sir, — I transmit to your Excellency herewith a copy of 
" a despatch which I have addressed to her Majesty’s Am- 
" bassador at Paris, respecting a project, of which a copy is 
" also inclosed, communicated to me by M. de Lesseps, for 
“ the neutralization of the Suez Canal. 

" Your Excellency will see that Her Majesty’s Govern- 
“ ment have declined to adopt that project, but have in- 
" formed M. de Lesseps of the intimation made by her 
" Majesty’s Government to the Russian Ambassador that 
" an attempt to blockade or otherwise to interfere with the 
" Canal or its approaches would be regarded by her 
" Government as a menace to India, and as a grave injury 
"to the commerce of the world, and that on both these 
“ grounds any such step — which her Majesty’s Government 
" hope and fully believe there is no intention on the part of 
" either belligerent to take — would be incompatible with the 
" maintenance by her Majesty’s Government of an attitude 
" of passive neutrality. 

" I have to request your Excellency to acquaint the 
" Porte with the intimation thus conveyed to the Russian 
" Government, and to state that her Majesty’s Government 
will expect that the Porte and the Khedive will, on their 
" side, abstain from impeding Ibe navigation of the Canal, or 
"adopting any measures likely to injure the Canal or its 
" approaches, and that her Majesty’s Government are firmly 
determined not to permit the Canal to be made the scene 
" of any combat or other warlike operations. 



EGYPT. 


155 


I have addressed a similar despatch to her Majesty’s 
« Agent and Consul-General in Egypt. I am, &c. 

“ Derby.” 

The Suez Canal was hot blockaded during the war, but 
it would be difficult to deny that if Russia, against whom 
the Khedive had furnished his quota of troops acting in the 
Ottoman army, had thought fit to adopt this mode of har- 
assing her belligerent, she would not have been within 
her right in so doing. Custom and prescription indeed, as 
well as positive agreement, may clothe with the sanction of 
International Law such a position as England has assumed : 
a positive international agreement may effect this end more 
speedily. But it cannot be admitted that the might of one 
State can make the right in this matter. England also 
declared that she would not allow the Canal to be the scene 
of any combat or warlike operation. But she did not assert 
or imply that both the public and private ships of Russia 
would not be entitled to what J urists call an innocent passage 
through the Canal. It was implied that, once in the Canal, all 
8hij)s would be in neutral waters, but it was not denied that 
either belligerent might prevent the other from entering this 
neutral spot by combat in the open sea constituting the 
approach to the canal (Te). 

The neutrality of the Persian Gulf was, I believe, de- 
clared by Russia. 

(A) Question piit by Sir W. Ilarcourt in the House of Commons, Juno 
7, 1877. 



156 


INTESNATIOKAL LAW. 


CHAPTER HI. 

STATES UNDER A FEDERAL UNION. 

G. We now arrive at the second branch of this part of 
our subject— namely, the consideration of several States 
tinder a Federal Union. The examples in modern times of 
this description of States are the following : — 

1. The Germanic Confederation {Der Deutsche Bund) (a), 

the North German Confederation from 1866 to 1871, 
the German Empire since 1871. 

2. The Confederated Cantons of Switzerland. 

3. The United Republics of North America. 

4. The United Republics of Central and South America: 
—namely, first, The United Provinces of Guatemala, or the 
Republic of Central America; secondly. The United Pro- 
vinces of Rio de la Plata, or the Argentine Republic. 

Cl. States under a Federal Union may be classed 
under two principal heads: — First. Those which have 
retained their Independent and Individual Sovereignty, 
especially as to the adjustment of their external relations 
with other Nations, and belong to a system of Confederated 
States only for purposes of domestic and internal policy, and 
of mutual assistance and defence (Staatenbund) (5). 

But the Laws of this Federal Body have only effect and 
force in the separate members of the system through the 
agency and application of the particular laws and jurisdiction 

(a) Deutsehet Stoats- vmi SundesrecM von ZaekarUi, erater Th^, 
Kap. L 8, 21 {Oottit^en, 1841): ‘^Yon dem zusanunengesetzten Stoate, 
der Union, und dem TolkeTrechtlichen Staatenveroine.” 

(b) ZaohariU, ib. B. i. Kap. i. a. 21. The other class is aptly desig- 
nated Bundesstaat. 



STATES UNDER A FEDERAL UNION. 


157 


of each individual Government ; therefore, as far as Foreign 
Power is concerned, these Confederated States must be con- 
sidered as individuallj responsible for their conduct, and as 
separate Independent States. In this class must be ranked 
the existing Germanic Confederation. 

Secondly. The Federal Union may be so adjusted that 
the management of the external relations of the respective 
members of the Union be absolutely vested in a Supreme 
Federal Power. 



158 


INTEBNATIONAL LAW. 


CHAPTER IV. 

GERMAN CONFEDERATION AND EMPIRE. 

CII. The history of the Germanic Confederation has 
had an important bearing on the general system of Inter- 
national Law, and of the public law of Europe. It has 
undeigone a complete revolution since the first publication 
of this volume. Nevertheless it has seemed to me for 
various reasons expedient to add to rather than omit what 
had been then written. 

The complete study of this subject requires a division of 
it into at least five epochs — 

1. The original institution of the Confederation. 

2. The remodelling of it in the year 1806. 

3. The change effected by the Treaties of Vienna, 1815, 
1820. 

4. The entire destruetion of this Confederation by Prussia, 
and the erection of a new Confederation of Northern Ger- 
many in 1866. 

5. Constitution of the German Empire, April 16, 1871. 

cm. (1) The ancient Germanic Empire (a), august and 

venerable for many reasons to the student of International 
Jurisprudence and Public Law, was virtually destroyed by 
Napoleon’s Confederation of the Rhine, and must be con- 
sidered as formally extinguished by the Act (5) of Abdication 

(a) ZleuAtcAdt JSundeorecAl, 3inc4artS,Bandi.Kap.ii. 

Zeit des Deutschen B^hs.” Von dem Oegandttchaftreclde deaDeuttehen 
Bundes, Minut, i. p. 528. Vattdf ii. p. 338, s. 59. 

(5) ^ the Act, Martend Bee. des Traith, viii. p. 488; Wheaton’s 
History f p. 70 ; Ha&amis Middle Ages, vola ii. c. 5 ; Koch, Histwre dn 
Tredtis, c. i. s. 1 (par Sehoell), The Oermanic Constitution, and still 



GERMAN CONFEDERATION. 


159 


of the Emperor Francis, in August 1806. (2) By this Act 
the Electors were absolved from their duty to him as head 
of the Empire, and his own German dominions were incor- 
porated into the Austrian States, over which he henceforth 
ruled as Emperor of Austria. 

CIV. The Germanic Confederation is to be distinguished 
from those confederated States which have indeed an Inde- 
pendent’ National Government, but have also a Central 
Federative Government which conducts the International 
relations of the Confederacy. 

The deliberations of the Germanic Confederacy were con- 
ducted by a Diet, which sat at Frankfort-on-the-Main, and 
was the established organ of the Confederacy, and the perma- 
nent congress of the plenipotentiaries of the States which 
were members of it (c). 

It did not interfere with the internal arrangements of the 
individual members of the Confederacy, except in so far as 
they atfected the general interests of the whole body ; and 
each of these members communicated directly, and not 
through the medium of a central Government, with the 
Governments of Foreign Nations. 

CV. (3) The Treaties which must be consulted upon 
this subject are — The Treaty of Vienna, 1815 — the Ayinexes 
to that Treaty ; the Acte final ( Wiener Schlussacte) signed 
at Vienna May 15, 1820; the Loi oryanique, which settles 
the military constitution of the Confederation ; the Act of 
the Diet of June 28, 1832, and of October 30, 1834. 

By the fourth, fifth, and sixth articles of the Act which 
settled the Constitution of the German Confederation at the 
Congress of Vienna, it was provided. That, in the Fede- 
rative Diet, all the members vote by their plenipotentiaries, 
either individually or collectively - 


wore the Medieval Oouncils of the Ohureh, are the institutions which 
in theory, made the nearest approach which perhaps the world haa 
wer seen to an Universal International Tribunal. 

W Zachan&, ib. iii. ss. 223 , 11 ; ss. 261 , 1 . 



160 


INTEUNATIONAL LAW. 


Austria presides over the Diet. Each State has a right 
to make propositions, under limitations as to time fixed by 
the President. Whenever Fundamental Laws are to be 
proposed or altered, when Organic Institutions or other 
arrangements of a common interest are to be adopted, the 
Diet resolves itself into a General Assembly. 

CVI. By the sixth article of the Treaty of Paris (1814), 
it was stipulated that “ the States of Germany should be 
“ independent, and united by a Federal League.” 

By the Federal Act (d) of 1815, the possessions of those 
Sovereigns and Free Towns which had anciently apper- 
tained to the German Empire ” were anew incorporated 
into a League, entitled The German Confederation ”(e). 

By the eleventh article of the Annexe to the Treaity, it 
was provided, that — 

“(Art. 11.) The States of the Confederation bind them- 
« selves to defend, not only the whole of Germany, but also 
each individual State of the Union, in case it should be 
“ attacked, and mutually guarantee all their possessions in- 
“ eluded in this Union. 

“ When war is declared by the Confederation, no member 
** can engage in separate negotiations with the enemy, nor 
“ make peace, or a truce, without the consent of the others. 

“ The members of the Confederation, whilst reserving to 
‘‘ themselves the right of forming alliances, bind themselves 
not to contract any engagement which shall be directed 
against the security of the Confederation, or of the indi- 
vidual States of which it is composed (/). 

** The Confederated States bind themselves not to make 
“ war against each other under any pretext, and not to pro- 
secute their controversies by force of arms, but to suWt 
“ them to the Diet, which shall endeavour to mediate through 
** the medium of a Commission ; and if this fail, and a judicial 

(if) See Annexe 9 of the Final Act of the Oongresa of Vienna. 

(e) Martens, Nom. Bee. ii. p. 616. 

(,/) This dauee is not in the body of the Treaty ; see s. 66. 



GERMAN CONFEDERATION. 


161 


<( gentenoe be necessary, it shall be obtained by an Austregal 
« Tribunal {Austregal Instanz) properly constituted, from 
« which there shall be no appeal ” {g). 

The Act of 1815, so incoi*poratcdin the Treaty of Vienna, 
was completed by the First Act of 1820 (May 15). This 
Act contains the following articles as to their Mutual Inter- 
national relations {h ): — 

“ Art. 1. The Germanic Confederation is an International 
“ union (volkerrechtlicher Verein) of sovereign princes and 
« free cities of Germany, for the preservation of the inde- 
pendence and inviolability of the States comprised in the 
« Confederation, and for the maintenance of the internal and 
« ext^ai security of Germany. 

Art. 2. This union is, in its relations, a self-subsisting 
« Association of States, mutually independent of one another, 
“ with equal reciprocal rights and obligations ; but, in its 
“ external relations, a collective power combined in political 
“ unity. 

« Art. 3. The extent and limits which the Confederation 
“ has marked out for its operation are defined by the Federal 
“ Act, which is the original compact and first groundwork of 
“ this union : whilst it announces the object of the Confedc- 
ration, it provides and determines at the same time its 
“ powers and obligations. 

“Art. 4. The power of developing and perfecting the 
“ Federal Act, so far as the completion of the object therein 
“ set forth may require, belongs to the assembly of the mem- 
“ hers of the Confederation. The resolutions, however, to 
“be adopted for this purpose may not contravene the spirit 
“of the Federal Act, nor deviate from the fundamental 
“ character of the Confederation.” 

evil. The following articles respect the International 
relations of the Confederation with other States, both with 


(jf) Anwxt to the Treaty, De M. et de C. i. p. 146. 

(/() Conf(Sd4ration Gtenuanique . — De Martene et de Cutsif, See. de 
Tratee, Sec. voL iil pp. 4^, 464. Wheaton's History, p. 446, 

VOL. I. M 



162 


1NT£RNATJ0KAL LAW. 


respect to its corporate capacity, and with respect to the in- 
dividual members under its protection. And, first, it should 
be observed, that by the fiftieth article of the Acte final 
(^Wiener SeJUussacte) of 1820, it is provided; 

“ That, with respect to Foreign Afiairs in general, it is 
the duty of the Diet — 

1, As the organ of the Confederation, to watch over 
^^the maintenance of peace and amicable relations 
“ with Foreign States. 

“2. To receive the Envoys accredited by Foreign States 
“ to the Confederation, and to nominate, if it should 
“he thought necessary. Ministers to represent the 
“ Confederation at Foreign Courts, 'f 

“ 3. To conduct, when it may be necessary, negotiations, 
“ and conclude treaties on behalf of the Confedera- 
" tion. 

“4. To interpose with Foreign States good ofiices on 
** behalf of those members of the Confederation who 
“ desire them, and to employ the same agency with 
“ the separate States, members of the Confederation, 
“on behalf of Foreign Governments who ask for 
“ such intervention.” 

By the thirty-fifth article it is declared, that “ the Ger- 
“ manic Confederation has the right, as a collective body, 
“ to declare war, make peace, and contract alliances, and 
“ negotiate treaties of every kind ; nevertheless, according 
“ to the object of its institution, as declared in the second 
“article of the Federal Act, the Confederation can only 
“ exercise these rights for its own defence, for the mainten- 
“ ance of the external security of Germany, and the inde- 
“ pendence and inviolability of each of the States of which 
“ it is composed. 

“ Art. 36. The Confederated States having engaged, by 
“ the eleventh article of the Federal Act, to defend against 
“ every attack Germany in its entire extent, and each of its 
“ Co-States in particular, and reciprocally to guarantee the 
“ integrity of their possessions, comprised in the union, 



GERMAN CONFEDERATION. 


163 


one of the Confederated States can be injured by a Foreign 
« Power, without at the same time, and in the same degree, 

« affecting the entire Confederation. 

On the other hand, the Confederated States bind them- 
« selves not to give cause for any provocation on the part of 
« Foreign Powers, or to exercise any towards them. In case 
“ any Foreign State shall make a well-grounded comjtlaiDt 
“ to the Diet of an alleged wrong committed on the part of 
“ any member of tlie Confederation, the Diet shall require 
“ such member to make prompt and satisfactory reparation, 

“ and take other necessary measures to prevent the disturb- 
“ ance of the public peace. 

“ Art. Where differences arise between a Foreign 
“ Power and any State of the Confederation, and the inter- 
“ vention of the Diet is claimed by the latter, that body shall 
“ examine the origin of the controversy, and the real state of 
‘‘ the question. If it results from this examination that such 
“ State has not a just cause of complaint, the Diet shall 
“ engage such State, by the most earnest representations, to 
“desist from its pretensions, shall refuse its intervention, 
“ and, in case of necessity, take all proper means for pre- 
“ serving peace. Should the examination prove the contrary, 
“ the Diet shall employ its good offices in the most efficacious 
“ manner, in order to secure to the complaining party com- 
“ plete satisfaction and security. 

" Art. 38. Where notice received from any member of 
“ the Confederation, or other authentic information, renders 
“ it probable that any of its States, or the entire Confede- 
ration, are menaced with a hostile attack, the Diet shall 
“ examine into and pronounce without delay upon the ques- 
“ tion whether such danger really exists ; and if determined 
in the affirmative, shall adopt the necessaiy measures of 
“ defence. 

“ This resolution and the consequent measures are deter- 
“ mined in iihe Permanent Council by a plurality of votes. 

” Art. 39. When the territory of the Confederation is 
“ actually invaded by a Fore^ Power, the state of war is 



164 INTERNATIONAL LAW. 

“ establiahed by the fact of invasion ; and whatever may be 
** the ultimate decision of the Diet, measures of defence, pro- 
portioned to the extent of the danger, are to be imme- 
diately adopted. 

“ Art. 40. In case the Confederation is obliged to declare 
“war in form, this declaration must proceed from the 
“ general assembly determining by a majority of two-thirds 
“ of the votes. 

“ Art. 41. The resolution of the Permanent Council de- 
** daring the reality of the danger of a hostile attack renders 
‘‘ it the duty of all the Confederated States to contribute to 
“ the measures of defence ordained by the Djd. In like 
** manner, the declaration of war, pronounced ii^c general 
assembly of the Diet, constitutes all the Confederated 
** States active parties to the common war. 

“ Art. 42. If the previous question concerning the exist- 
** ence of the danger is decided in the negative by a majority 
** of votes, those of the Confederated States who do not con- 
“ cur in the decision of the majority, preserve the right of 
“ concerting between themselves measures of common de- 
“ fence. 

“ Art. 43, Where the danger and the necessary measures 
“ of defence are restricted to certain States only of the Con- 
** federation, and either of the litigating parties demands the 
mediation of the Diet, the latter body may, if it deems the 
proposition consistent >vith the actual state of things, and 
‘^with its own position, and if the other party consents, 
“ accept the mediation ; provided that no prejudice shall re- 
“ suit to the i)rosccution of the general measures for the 
“ security of the territory of the Confederation, and still less 
“ any delay in the execution of those already adopted for 
that purpose. 

“ Art 44. War being declared, each Confederated State 
“ is at liberty to furnish for the common defence a greater 
amount of forces than is required as its legal contingent; 
“ but this augmentation shall not form the ground of any 
“ claim for indemnity against the Confederation. 



GERMAN CONFEDERATION. 


165 

“ Art. 45. Where in case of war between Foreign Powers, 
** or other circumstances, there is reason to apprehend a vio- 
« latirm of the neutral territory of the Confederation, the Diet 
« shall adopt without delay, in the Permanent Council, such 
“ extraordinary measures as it may deem necessary to main- 
“ tain this neutrality. 

“ Art 46. Where a Confederated State, having posses- 
« sions without the limit of the Confederation, undertakes a 
« war in its character of a European Power, the Confedera- 
“ tion, whose relations and obligations ore iinaifected by 
“ such war, remains a stranger thereto. 

“ Art. 4^^Where such State buds itself menaced, or at- 
“ tacked, ih llts possessions not included in the Confedera- 
“ tion, the latter is not bound to adopt defensive measures, 
“ or to take any active part in tbe war, until the Diet has 
“ recognized in the Permanent Council, by a plurality of 
“ votes, the existence of a danger threatening the territoiy of 
“ the Confederation. In this last case, all the provisions of 
“ the preceding articles are equally applicable. 

“ Art. 48. The provision of the Federal Act, according to 
“ which, when war is declared by the Confederation, none of 
“ its members can commence separate negotiations with the 
“ enemy, nor sign a treaty of peace or armistice, is equally 
“ applicable to all the Confederated States, whether they 
" possess or not dominions without the territories of the Con- 
“ federation. 

“ Art. 49. In case of negotiations for the conclusion of 
a peace or armistice, the Diet shall confide the special 
“direction thereof to a select committee named by that 
“ body, and shall appoint plenipotentiaries to conduct the 
“negotiations according to instructions, with which they 
‘ shall be iurnished. The acceptance and confirmation of a 
treaty of peace can only be pronounced in the general 
“ assembly ” (i). 


W ^enti, Nouveau &snvieil, tom. v. pp. 467-601 ; De M.etde C. i. p. 

^ few . ^ PP- 467-400 ; Nelaiiona of the DueJuee 

J ecWawpigr and Hoktein.— Twits, p. Ill ; Zachar, ib. 111, s. 261. 



166 


INTERNATIONAL LAW. 


CVIII. The Federal Constitution was modified by a 
decree of the Diet at Frankfort (October 30) 1832, and 
still further by an Act of 1834 ; but these modifications, 
whether desirable or not, were pronounced by the British 
Minister for Foreign Affairs to involve no point which con- 
cerned the foreign relations of the different States with other 
States, and, therefore, not to found any just ground for their 
interference {j ). But in 1834 the British Minister at the 
Germanic Diet protested against the oceupation of Frankfort 
by Austrian and Kussian troops as a violation of the Treaty 
of Vienna, and said, “ The Germanic Confederation has been 
“ created by the Treaty of Vienna ; and, as to its relations 
“ with other States, the rights of the Confederation, its 
“ powers, and its obligations, arc to be sought for in the 
“ Stipulations alone ” (A). 

It would not be within the limits of this work to describe 
the various attemps made to remodel the Germanic Con- 
federation, extending from the month of February 1848 to 
May Id, 18dl. The end of the revolutionary agitation 
which distracted Germany during this period was the restora- 
tion of the Frankfort Diet as it had existed since 1815 (J). 

CIX. From what has been already stated, and up to this 
eix)ch, the following propositions appear to be legitimately 
deduced: — 

First. That the Germanic Confederation maintained with 
those who were members of that league relations of a special 
International character, resting entirely upon the Federal 
Act of 1815, and further explained by that of 1820, as their 
sole foundation ; but that all the members of this league were 

{j) Wheaton's History, 460, 468, 470, 472, 483. Mr. Bxdwer's Speech 
in the Home of Comiwms, August 2, 1832 ; and Lord Ptdtnershaie 
Reply.— HemsardPa ParHanteTdary Hdxttes (third series), vol. xiv. pp 
1020-1040. 

(A:) Zaoharid, ib. B. iii. Kap. ui. s. 256: Streitigkeiten iiber Aus- 
legung und Auwenduug der Verfassung.” — Bundmcluedsgericht vou 
1834. The Relation of ^hletrwiy and Hokteinf by Dr. Ttoiss^ p. 110 1 1 
WheiUon, Rlim, p. 66. 

(0 Animal Reyister, voL xciii. p. 277. 



GEBMAN CONPEBEBAIION. 


167 


governed in their relations ivith other Independent States by 
the general International Law. 

Secondly. That the mutual rights and duties of the mem- 
bers of this Confederation were wholly distinct from those 
which existed between them and other States, not members 
of the Confederation. 

Thirdly. That the operation of the duties and rights 
growing out of the constitution of the Confederation was not 
only exclusively confined to the Independent Sovereigns 
who were members of it, but also to the territories which 
belonged to them, by virtue of which they were originally 
incorporated into the Germanic Empire (m). 

Fourthly. That the admission of new States, not being 
Herman, into the Confederation, or the admission of States 
not sovereignties, would have conflicted with the principle and 
the objects of the Confederation (»). 

If these propositions be sound in point of law and reason, 
it follows that neither territories belonging to these sovereigns 
at that time, nor subsequently acquired tenitories, could have 
been engrafted into this Confederation without the consent of 
other nations, especially of those who were parties to the 
Treaty of Vienna. 

CX. The events of our own day have called for very 
important practical applications of these principles : hrst, in 
the case of the Duchies of Schleswig and Holstein (o), as to 
the relation in which they stood to the Crown of Denmark 
on the one hand, and to the Germanic Confederation on the 
other : Schleswig having been a fief of the Danish Cro^vn 
from the period of its first creation as a Duchy up to the year 
1658, and having since that time been annexed to the Gottorp 
Duchy, and having been afterwards re-annexed with Gottorp 

(»t) Zttchari&,li\i, Band iii. s. 219: BearitT und Zweeh dcs Deutschen 
Bundes.” 

(w) Zacharia, ib. s. 222. 

^ (o) The JRekttions of the Duchies of Schlesioig and Hoildein to the. 
Orom of Denmark and the Germanic Confederation, by Dr. Txciss, 
cliap. V. p. ia3. 



168 . INTERNATIONAL LAW. . 

to Denmark, and never having been directly connected with 
the G-erman Empire ; Holstein, on the contrary, having been 
a German fief. 

Those.who argued for the German side (as it was called) 
of the question, contended, that because the King of Den- 
mark was subject, as Duke of Holstein, to the laws of the 
Confederation with respect to that Duchy, therefore his 
Duchy of Schleswig was also subject to the same condition. 
It was answered irresistibly, it would seem, so far as justice, 
practice, and the reason of thing are concerned, that it 
might as well be said that his province of Jutland was subject 
to the Confederation ; that the King of Holland, by reason 
of his Duchy of Luxemburg, had not subjected Belgium to 
the Confederation ; and that the members of it had not pre- 
tended to interfere as to the separation of Belgium from 
Holland, though they had done so as to the arrangements 
with respect to the Duchy of Luxemburg. On the establish- 
ment of tlie Kingdom of Belgium, Luxemburg was divided, 
half being given to Belgium, and half remaining to Holland ; 
the German Confederation being at first compensated by 
the admission into its membership of the newly-created Duchy 
of Limburg (p). Another case which gave rise to a discus- 
sion as to the practical application of the principles of the 
German Confederation was the alleged attempt or desire of 
Austria to incorporate her Hungarian, Croatian, and Italian 
dominions into the German Confederation ; to which attempt 
the Powers who guaranteed the Treaty of Vienna had an 
unquestionable right to refuse their consent, and which right 
they might hold themselves bound by their obligations, both 
with respect to themselves and to the general peace of the 
world, to exert (y). 

^ CXI. (4) We have now arrived at the penultimate re- 
solution of the Germanic Confederation. In its relation 


(p) ZacharUi, ib. b. 221, II. D. 

( 9 ) See the note on this subject of the French and English to the 
Austrian Qovemment in the Appendix to the second volume of the 
Awmmref 1852-3, by the editors of the Heme dee Deux Memtve. 




OEBMAN CONFBDERATION. 


169 


to Foreign States, it had been of little practical importance 
since the Treaty of Vienna. This was owing to the constant 
rivalry between the two greatest members of it, Austria and 
Prussia — a rivalry which was terminated in 1866, in a manner 
which had not been foreseen or expected by the European 
Powers, although the outbreak of democracy, in toe years 
1848 and 1849, had ended in greatly strengthening the 
power and authority of Prussia. In 1863 the Emperor of 
Austria convened the German Sovereigns at Frankfort to 
consider the form of the Federal Union. Prussia refused 

r 

to take any part in this convention, and at that time pro- 
bably began to prepare, in secret, the first steps for obtaining 
the supremacy for heraelf over the German Confederacy, 
and for excluding Austria from all future participation 
therein. After the death of the King of Denmark, the 
claims of the German people witli respect to the Duchies 
of Holstein and Schleswig ought to have been enforced, if 
they were founded upon justice, by the intervention (r) of 
the Diet ; but Austria was induced by Prussia, under the 
pretext of restraining democracy, to participate with her in 
the invasion of Denmark. From that moment, Prussia saw 
her way to expel Austria from the supremacy in Germany, 
which she intended to obtain for herself. 

In 1864 “ much-wronged Denmark ” {s), left alone without 
allies, was compelled, by the overwhelming military forces of 
Austria and Prussia, to cede to them the Duchies of Schles- 
wig, Holstein, and Lauenburg {t). 

A dispute rapidly arose between Austria and Prussia with 
respect to the right of succession to the Duchies of Schleswig 
and Holstein. This right they had both previously recog- 
niaed as being vested in the hereditary Prince of Augus- 
tenburg. Prussia soon showed the determination, which she 
afterwards executed, of annexing to her o^vn territories the 

(r) By what waa technically termed “ a Federal execution.” 

(*) Sir A. M(Uef,, Overthrow of the Germanic Confederation, p. 885 ; 

also p. 20. 

(«) See Artide Hi. Treaty of Vienna, Oct. 30, 1804. 



170 


INTEBNATIOKAL LAW. 


Elbe Dudlies. The other Powers of Europe did not inters 
fere, otherwise than by diplomatic remonstrance, to maintain 
the public law of Europe, as contained in the Treaties of 
18 Id upon this question. The Diet attempted to intervene, 
but Prussia denied its competence, and refused to be bound 
by its jurisdiction. On August 14, 1865, the Treaty of 
Gastein embodied a sort of compromise between Austria 
and Prussia, whereby the former was to take Holstein and 
the latter Schleswig. But this treaty did not avail to pre- 
vent an open breach between these two Great Powers, which 
shortly afterwards took place. The Diet again, in vain, 
attempted to intervene. Prussia allied herself with Italy, 
and a war with Austria ensued. In this war the Diet en- 
deavoured to support its rights, by bringing into the field 
an army composed of the troops of divers Federal States. 
Bavaria, Hanover, and Saxony became the allies of Austria. 
The result is well known. Prussia, by her superior military 
organization, and the important aid of Italy, obtained, in 
1866, a complete victory over her rival. The Treaty of 
Prague was signed on August 23, 1866, between the 
two Powers, the exact contents of which, so far as they 
affect the present question, have been already mentioned ; 
but I will state here the general conclusion, in the language 
of the must recent, and certainly not the least competent, 
historian of the Germanic Confederation : — 

“ The peace agreed on at Nicolausbcrg was signed at 
“Prague, and ratified on .July 30. The dissolution of 
“ the Germanic Confedemtion was thereby recognized, and 
“ Austria, engaging to abstain from all interference in 
“ the reconstruction of Germany, gave her assent before- 
“ hand to all such territorial changes as Prussia saw fit to 
“make, on the sole condition that Saxony should remain 
“ intact. Austria likewise ceded all pretensions to condo- 
“ minate right with Prussia in the Elbe Duchies, stipulating, 
“ however, that North Schleswig should be entitled to vote 
“ upon the question of eventual re-union witli Denmark. 

“ Saxony it was decided should be united to the North 



GERMAN CONFEDERATION. 


171 


('Grcnnan Confederation; and special arrangements as to 
" the army, the police, and post-office were made with that 
« Qovemment, which left King John few remains of inde- 
“pendence or royal prerogative, excepting the right of 
imposing taxes on his subjects. 

Prussia took possession of Hanover, Electoral Hesse, 
“ Nassau, and the formerly free city of Frankfort-on- 
“ Main, as well as of Schleswig and Holstein, besides the 
territorial cessions made by Bavaria and Grand-Ducal 
“ Hesse, in full sovereignty ; and here it may be remarked 
''tliat, in spite of many remonstrances, the article of the 
“ Treaty of Prague relating to the vote of North Schleswig 
“ for re-union with Denmark remains to this day ” (the author 
writes in 1870) “ unexecuted ” (w). 

Since the author wrote these remarks, and in the present 
year (1879), this article has been abrogated by a convention 
between the two Powers. 

Germany next presented a new International aspect to 
Foreign States — a North German Confederation, diplomati- 
cally represented as such, but really under the absolute 
control of Prussia ; and Southern States, not formed as yet 
into a South German Confederation, but of which Austria 
was the most powerful State. 

With respect to Northern Germany, a treaty of con- 
federation was entered into between the Governments of 
Prussia, Saxe- Weimar, Oldenburg, Brunswick, Saxe- 
Altenburg, Saxe-Coburg-Gotha, Anhalt, Schwarzbui'g- 
Sondei’shausen, Schwarzburg-Kudolstadt, Waldeck, Keuss 
(of the younger line), Schaumburg-Lippe, Lippe, LUbeck, 
Bremen, and Hamburg. By this treaty it was agreed 
that a confederate constitution should be adopted by a 
German Parliament, and the troops of the confederates 
were to be under the supreme command of the King of 
Prussia. They mutually agreed to maintain “the inde- 


(tt) The Overthrow of the Germanic Confederation by Pnmia in 18GG, 
?* hy Sir Alextmder Malet, late H.M. Envoy ExtraoiilinaTy and 
Minister Plenipotentiaiy at Frankfort. 



172 


INTERNATIONAL LAW. 


** pendence and integrity ” of the contracting States, and 
guaranteed the defence of their territories (*). 

The enormous military preponderance which Prussia ^us 
obtained, not only in Germany, but in Europe, and the 
complete disturbance of the previously existing balance of 
power, are obvious and indisputable facts ; but the matter 
did not rest here, for in 1867 it was discovered that she 
had concluded a secret treaty, identical in its provisions, 
with the four States of Bavaria, Wttrtemberg, Baden, and 
Ilesse-Darmstadt. It was, in its fullest sense, an offensive 
and defensive alliance with each of them, with the peculiar 
feature of placing die whole military force of each State 
under the orders of the King of Prussia in case of war (y). 
The formidable use which could be made of this treaty was 
speedily shown in the war which broke out between Prussia 
and France in 1870. 

An important though unexpected result of this war was 
the complete blending of the Northern and Southern States 
of Germany. The Southern States joined in the war against 
France, and in November 1870, following the lead of Baden 
and Hesse, they all became members of the German Con- 
federation. . 

Not long after this event the King of Bavaria urged the 
King of Prussia to re-establish the German Empire. The 
North German Bund took cognizance of the matter, and 
resolved that the Empire should be restored, and the King 
of Prussia declared hereditary Emperor of Germany. The 
King accepted the proffered dignity and was proclaimed 
Emperor at Versailles whilst prosecuting the war {gainst 
France. 

The present Constitution of the German Empire was 
promulgated at Berlin on April 16, 1871, the prmcipal 
features of which are as follows : — 


(a’) Am. Setf. 1860, p. ^47. See also Asm. Reg. 1868, p. 2^. 

(y) 3ee Sir Alexander Mcdd’a Overthrow of the Oermanic Confedera- 
tion, pp. 878-7. 



GERMAN CONFEDERATION. 


173 


Constitution of the German Empire (z). 

CXIa. " The King of Prussia, in the name of the North 
« German Confederation ; the Kings of Bavaria and Wiir- 
“teraberg; the Grand Duke of Baden, and the Grand 
« Duke of Hesse for tliose parts of the Grand Duchy of 
“ Hesse which are south of the river Main : conclude an 

everlasting Confederation for the protection of the terri- 
<< tory of the Confederation and the rights thereof, as well 
“ as to care for the welfare of the German people.” 

This Confederation will bear the name ‘ German Empire ’ 
and is to have the following Constitution : — 

“I. Teuritobt of the Confederation. 

“ Art. I. The territory of the Confederation is com- 
” posed of the States of Prussia with Lauenburg, Bavaria, 
“Saxony, Wurtemberg, Baden, Hesse, Mecklenburg- 
“ Schwerin, Saxe-Weimar, Mecklenburg- Strelitz, Olden- 
“ burg, Brunswick, Saxc-Meiningen, Saxe-Altenburg, Saxe- 
“ Coburg-Gotha, Anhalt, Schwarzburg-Budolstadt,Schwarz> 
“burg-Sondershausen, Waldeck, Reuss (elder line), Reuss 
“ (younger line), Schaumburg-Lippe, Lippe, Liibeck, Bre- 
“ men, and Hamburg. 

“II. Legislation of the Empire. 

“ Art. II. Within this Confederate territory the Empire 
“ exercises the right of legislation according to tlie tenor 
“of this Constitution, and with the effect that the Im- 
“perial laws take precedence of the laws of the States. 
“ The Imperial laws receive their binding power by their 
“ publication in the name of the Empire, which takes place 
“ by means of an Imperial Law Gazette. If the date of 
“ its first coming into force is not otherwise fixed in the 
“ published law, it comes into force on the fourteenth day 
“after the close of the day on which the part of the 


(s) Map of Swope Inf Treaty, vol. iii. p. 1031 et seq, 

^pril 16, 1871, Berlin. 



174 


INTERNATIONAL LAW. 


** Imperial Law Gazette which contains it is published at 
“ Berlin. 

‘‘Art. III. For entire Germany one common natio- 
« nality exists, with the effect that every person (subject, 
“ state-citizen) belonging to any one of the Confederated 
States is to be treated in every other of the Confederated 
States as a bom native, and accordingly must be per- 
mitted to have a fixed dwelling, to trade, to bo appointed 
to public offices, to acquire real-estate property, to obtain 
the rights of a state-citizen, and to enjoy all other civil 
** rights under the same presuppositions as the natives, and 
“ likewise is to be treated equally with regard to legal prosc- 
“ cution or legal protection. 

“No German may be restricted from the exercise of this 
“ right by the authority of his own State, or by the authority 
“ of any of the other Confederated States. 

“ Those regulations which have reference to the care of 
“ the poor, and their admission into local parishes, are not 
“ affected by the principles set down in the first paragraph. 

Until further notice the treaties likewise remain in 
“force which have been entered into by the particular 
“ States of the Confederation regarding the reception of per- 
“ sons expelled, the care of sick persons and the biuial of 
“ deceased persons belonging to the States. 

“ What is needful for the fulfilment of military duty in 
“ regard to the native country will be ordered by the way 
“ of Imperial legislation. 

“ Every German has the same claim to the protection of 
“ the Empire with regard to foreign nations. 

“ Art. IV. The following affairs are subject to the 
“ superintendence and legislation of the Empire. 

“1. The regulations as to freedom of translocation, 
** domicile, and settlement affairs, right of citizenship, pass- 
“ port and police regulations for strangers, and as to trans- 
“ acting business, including insurance affairs, in so far as 
“ these objects are not alreadyprovided for by Article lH* 
“of this Constitution. In Bavaria, however, the domicile 



OERMAN COKFEDEBATION. 


175 


and settlement affairs, and likewise the affairs of coloniza> 

« tion and emigration to foreign countries, are herefrom ex- 
« eluded. 

»2. The Custouis and Commercial legislation and the 
“ taxes which are to be applied to the requirements of the 
“ Empire. 

« 3. The regulation of the system of the coinage, weights 
and measures, likewise the establishment of the principles 
«<for the issue of funded and unfunded paper money. 

“ 4. The general regulations as to banking. 

“ 5. The granting of patents for inventions. 

“ 6. The protection of intellectual property. 

« 7. The organization of the common protection of Ger- 
“ man commerce in foreign countries, of German vessels 
‘‘ and their flags at sea, and the arrangement of a common 
“ consular representation, which is to be salaried by the 
“ Empire. 

“ 8. Eailway affairs, excepting in Bavaria the arrange- 
“ments in Article XL VI., and the construction of land and 
** w'ater communications for the defence of the country and 
“ for the general intercourse. 

“ 9. The rafting and navigation affairs on waterways 
“ belonging in common to several of the States, and the 
“ condition of the waterways, and likewise the river or other 
" water dues. 

“ 10. Postal and telegraph affairs ; in Bavaria and Wtir- 
“ teinberg, however, only with reference to the provisions of 
Article Lll. 

“11. Regulations as to the reciprocal execution of judg- 
“ ments in civil affairs and the settlement of requisitions in 
“ general. 

“ 12. Likewise as to the verification of public docu- 
“ ments. 

“ 1 3. The general le^slation as to obligatory rights, pentd 
“ law, commercial and bill of exchange laws, and judicial 
" procedure. 

" 14. The military and naval affairs of the Empire. 



INTERNATIONAL LAW. 


“ Ifi. The measures of medicinal and veterinary police. 

The regulations for the press and for union societies. 

** Art. V. The legislation of the Empire is carried on 
" by the Council of the Confederation and the Imperial 
“ Diet. The accordance of the majority of votes in both 
“assemblies is necessary and sufficient for a law of the 
“ Empire. 

“III. Council of the Confederation. 

“ Committee for Foreign Affairs. 

“ Art. VI. The Council of the Confederation con- 
“ sists of the representatives of the members of the Con- 
“ federation, amongst which tlie votes are divided in such a 
“ manner that — 

VoUsd 

Pnusia haa (with the former votes of Hanover, 

Electoral Hesse, IXoIstdin, Nassau, and 

Frankfort) 17 

Bavaria 6 

Saxony . . ..... , . 4 

WUrtemherg 4 

Baden 3 

Hesse 3 

Mecklenhju^Schweiin 2 

Saxe-Weimar 1 

Mechlenhurg^Strelitz 1 

Oldenburg 1 

Brunswick 2 

Saxe-Mciningen 1 

Saxe-Altenburg 1 

Saxe-Coburg-Qotha 1 

Anhalt ........ 1 

Schwarzburg-Rudolstadt 1 

Schwarzbuig>SonderHhau8en .... 1 

Waldeck 1 

Bcuss (elder line) I 

Beuss (younger line) . . . . , . 1 

>Schaumbuig*Lippe 1 

Lippe . . 1 

Liibeck 1 

Bremen . . 1 

Uambmg 1 


Total 


68 



GEBMAN COXFEDEBATIOK. 


177 


<*Each member of the Confederation can nominate as 
It many plenipotentiaries to the Council of the Confederation 
11 as it has votes, but the totality of such votes can only be 
given in one sense. 

“Abt, VII. The Council of the Confederation deter- 
mines: 

<< 1. What Bills are to be brought before the Imperial 
Diet, and on the resolutions passed by the same. 

2. As to the administrative measures and arrangements 
“ necessary for the general execution of the Imperial legis- 
** lation, in so far as no other Imperial law has decreed to 
“ the contrary. 

“ 3. As to defects which have made themselves manifest 
** in the execution of the Imperial laws or the above-men- 
tioned measures and arrangements.” 

Art. VIII. provides for the formation of Committees, 
including a Committee for foreign affairs, of which Bavaria 
is Chairman. 

Art. IX. Every member of the Council of the Con- 
“federation has the right to appear in the Imperial 
“ Diet, and must at his desire at all times be heard in order 
“ to represent the views of his Government, even when these 
“views have not been adopted by the majority of the 
“ Council of the Confederation and of the Imperial Diet. 

“ Art. X. The Emperor is bound to afford the usual 
“ diplomatic protection to the members of the Council of 
“ the Confederation. 

“IV. The Presidency: King of Prussia, German 
“ Emperor. Right to declare War ; to make 
“Peace; to conclude Treaties with Foreign 
“Powers, and to send and receive Ambas- 

“ SADORS. 

“Art. XI. The Presidency of the Confederation be- 
“ longs to the King of Prussia, who bears the name of Ger- 
“ num Empermr. 

VOL. I. N 



178 


INTBKNATIONAL LAW. 


The Emperor has to represent the Empire intema- 
tionally, to declare war, and to conclude peace in the name 
of the Empire, to enter into alliances, and othmr treaties 
" with Foreign Powers, to accredit and to receive Ambas- 
" sadors. 

The consent of the Council of the Confederation isneces- 
“ sary for the declaration of war in the name of the Empire, 
unless an attack on the territory or the coast of the Con> 
" federation has taken place. 

** In so far as treaties with Foreign States have refer- 
encc to aihiirs which according to Article IV. belong to 
** the jurisdiction of the Imperial Legislation, the consent of 
^‘the Council of the Confederation is requisite for their 
conclusion, and the sanction of the Imperial Diet for their 
coming into force. 

Art. XII. The Emperor has the right to summon, 
to open, to prorogue, and to close both the Council of the 
** Confederation and the Im|>erial Diet. 

" Art. XIII. The summoning of the Council of the 
** Confederation and of the Imperial Diet takes place once 
“ each year, and the Council of the Confederation can be 
called together for the preparation of business without 
“ the Imperial Diet being likewise summoned, whereas the 
^Matter cannot be summoned without the Council of the 
“ Confederation. 

“ Art. XIV. The Council of the Confederation must 
he summoned whenever one-third of the votes require it. 

“ Art. XV. The Presidency in the Council of the 
“ Confederation and the direction of the business belongs to 
the Chancellor of the Empire, who is to be appointed by 
the Emperor. 

** The Chancellor of the Empire can be represented, on his 
“ giving written information thereof, by any other member 
“ of the Council of the Confederation. 

“ Art. XVI. The requisite motions in accordance with 
“the votes of the Council of the Confederation will be 
“ brought before the Imperial Diet in the name of the Eifi' 



GEBMAK CONFEDEBATIOE. 


179 


« peror, where they will be supported by members of the 
“ Council of the Confederation, or by particular Commis- 
" doners nominated by the latter. 

« Abt. XVII. The expedition and proclamation of the 
** laws of the Empire, and the care of their execution, be- 
« long to the Emperor. 

“ The orders and decrees of the Emperor are issued in 
« the name of tlie Empire, and require for their validity the 
<< counter-signature of the Chancellor of the Empire, who 
** thereby undertakes the responsibility. 

<‘Abt. XVIII. The Emperor nominates the Imperial 
“ officials, causes them to be sworn for the Empire, and 
** when necessary decrees their dismissal. 

'' The officials of any State of the Confederation, when 
“ appointed to any Imperial office, are entitled to the same 
“ rights with respect to the Empire as they would enjoy from 
“ their official position in their own country, excepting in 
‘'such cases as have otherwise been provided for by the 
“ Imperial legislation before their entrance into the Imperial 
“ service. 

“ Art. XIX. Whenever members of the Confedera- 
“tion do not fulfil their constitutional duties toward the 
“ Confederation they may be constrained to do so by way of 
“ execution. 

“ Such execution must be decreed by the Council of the 
“ Confederation, and be carried out by the Emperor. 

“V. Imperial Diet. 

“ Art. XX. The Imperial Diet is elected by universal 
“ and direct election with secret votes 

“Art^ XXII. The proceedings of the Imperial Diet 
“ are public. .... 

“ Art. XXIV. The legislative period of the Imperial 
“ Diet is three years. For a dissolution of the Imperial 
“ Diet within this time, a resolution of the Council of the 
“Confederation, with the assent of the Emperor, is re- 
“<l«i8ite. .... 

M 2 



180 


INTERNATIONAL LAW. 


** Art. XXyill. The Imperial Diet decides by ahso- 
“ lute majority of votes. The presence of a majority of 
“ the legal number of the members is necessary for the vali< 

" dity of a resolution 

Art. XXIX. The members of the Imperitd Diet are 
** representatives of the entire people, and are not bound by 
" orders or instructions 

“ VI. Customs and Commercial Affairs. 

**Art. XXXIII. Germany forms one Customs and 
** Commercial territory, encircled by a common Customs 
** frontier. Those separate parts of territory are excluded, 
** which, from their position, are not adapted for inclusion in 
“ the Customs frontier. .... 

** Art. XXXIV. The Hanseatic Towns, Bremen and 
** Hamburg, with so much of their own or of the adjacent 
** territory as may be needful for the purpose, remain as free 
ports outside the common Customs frontier, until they 
apply to be admitted therein 

“XIV. General Stipulations. 

“ Art. LXXVIII. Alterations in the Constitution 
“ take place by way of legislation. They are considered 
“ as rejected if they have fourteen votes in the Council of 
“ the Confederation against them. Those provisions of the 
“ Constitution of the Empire by which certain rights are 
“ established for separate States of the Confederation in 
“ their relation to the community can only be altered with 
“ the consent of the State of the Confederation entitled to 
“ those rights.” 

CXIb. The learned Dr. Franz von Holtz endorff thus 
sums up the leading points of differences between the new 
and the old Constitutions : — 

« The principal differences of the new Constitution of the 
“ Empire compared with the former Constitution of the 
“ North German Confederation (by which in other respects 
“ the continuity of the state of things existing in 1866 and 



GSIUIAN CONF£D£BATION. 


181 


« 1867 was in no wise interrupted) are these : the increase 
« of the authority of the Imperial Diet with respect to the 
sprees and associations; the limitation of the Emperor’s 
« prerogative by the necessity of obtaining the concurrence 
«of the Council of the Confederation {bundesrathliche 
Zustimmunff) in the matter of Offensive War \ the recogni>. 
<< tion of the peculiar rights of the South German States in 
certain affairs otherwise belonging to the authority of the 
Empire, especially the separate position of Bavaria in the 
<< administration of military affairs ; the increase of the autho- 
rity of the decisions of the Council of the Confederation 
by the establishment of an especial Committee for Foreign 
“ Af&irs under the presidency of Bavaria ; the increased 
difficulty in making changes in the Constitutiuii, which can 
“ now be negatived by fourteen voices in the Council of the 
Confederation, whereas, according to the law of the North 
German Confederation, a majority of two-thirds was suffi- 
“ cient to carry the proposal ; lastly, the recognition of the 
*‘Jura singulorum in the sense of the law of the old Confede- 
ration of 1815, so that the privileges granted to individual 
States could only be taken away with their concur^ 
“ rence ” (a). 

CXIl. The second class of Federal States embraces 
those which (5), by the terms of their confederation, vest 
the adjustment of their external relations in a Supreme 
Federal Power. (^Unio civitatum — Etat compose — Bundes- 

(a) Encyklopaiie der Bechtswusmdtaft, p. 800. 

(i) In these days, their union is so entire and per^t, that they are 
Hot only joined together in bonds of friendship and alliance, but even 
mahe use of the same laws, the same weights, coins, and measures, the 
some magistrates, counsellors, and judges so that the inhdbilanta of this 
lehoh tract of Greece seem *» all respects to form hut one single citg, 
<ixcept only that they are not enclosed within the drcuit of the same 
walls ; in ev^ other point, both through the whole Republic and in 
every separate State, we find the most exact resemblance and con- 
JSfiwwytfow’* PolgUus, vol. i. p. 224. 

Tblyi, Hist. 1. ii. c. iii. ; BynkershoeJt, Quasi, Jur, PM. 1. ii. c. xxiv. 
Bwiamagui, Prme^pes du Droit fiol^upte, pt. ii. ch, i. s. 43. 

I'Ae Fedadlist (American), 



182 INTEBNATlOMlL LAW; 

staat-^unirte Sf/f^en — StcuUen-Vereine)^ The Aohasan 
League and the United Provinces of the Netherlands fumuh 
memorable illustrations of such a confederation (c). 

CXIII. Ta this denomination belongs, at the present day, 
the Confederation of the Swiss Cantons (df). The Thirteen 
Cantons of Switzerland had for some time previous to the 
Treaty of Westphalia been de facto independent (e), but 
that Treaty formally recognized their existence as Inde- 
pendent States. The effects of the French Bevolution in 
1789 were severely felt in Switzerland. The Cantons, in 
wnsequence of the separation of various districts, were in- 
creased, first, to the number of nineteen, and finally to the 
number of twenty-two. Their internal dissensions brought 
about an Act of Mediation under Buonaparte in 1803, and 
subjected them to the invasion of the Allied Powers in 1813. 

In 1815 the claims of the conflicting Cantons were ad- 
justed, and the Confederation re-modelled at the Congress 
of Vienna; and in the same year (August 7) the number 
of the Cantons was increased to twenty-two by the Federal 
Act, signed at Zurich, and their neutrality was recognized 
(November 20) by an Act signed by the Allied Powers at 
Paris. 

CXIV. According to the Federal Act of 1815, the Swiss 
Confederation consisted of the union of twenty-two Cantons. 


ifi) Manud du Droit piddic de la Sume, 

Handbuch der SchwdsarUdun Staatm. 

Wheatm, EUm, du Droit intern. 1. i. pp. 72, 73. 

Wheaton, Hitt. pp. 492-496. 

(<0 ^ Martens, Nouv. Bee. t. ii. p. 68 ; t. iv. pp. 161, 278 ; t. vii. p. 173 ; 
and De M. et de C. t. iu. pp. 14, 88, 89, 197, 242, for the following 
treaties relating to the Swiss Confederation 1814. Faix de Paris, 
Art. yi. 8. La Suisse ind4pendante continuera de se gouvemer par 
elle-mlme,” “ 1814, 16 ao&t. Les Dix-neuf Cantons, Tiaitd d’olliance 
pour la consery'Stion de leur liberty et inddpendance.” “ 1816, 7 oodt. 
Acte de Confederation entre les Viagt-deux Cantons holvetiques, signe 
& Zurich.” '' 1816, 20 novemhre. Acte signe ft Paris par les pienipo- 
tentiaires d’Autriche, de France, de la Qrande-Bretagne, de Prusse, et de 
itusaie, par lequel la neutralite de la Suisse a ete reconnue.” 

(e) JTocA, J2wt. det Tr. i. iii. 



SWISS CO^EDBBATION. 183 

The object of thei^ union was declared to b^the preservation 
of tlieir liberty and independence, seoorlt^ against foreign 
invasion, and the maintenance of internal public tranquillity 
and order. They mutually guaranteed their rejpective terri- 
tories and constitutions. Their Diet was formed by a Con- 
gress of Deputies, one being delegated from each Canton, and 
each having equally a single voice in the deliberations of 
this common senate. It assembled every year, alternately, 
at Berne, Zurich, and Lucerne — these being the Cantons 
{ Vorort) in which the executive power of the Confederation 
resided when the Diet was loot actually sitting. The Dietc 
had the exclusive power of declaring war, of entering into 
treaties of peace, conuuerce, and alliance with Foreign 
States. These negotiations, however, required the assent 
of three-fourths of the Diet, though in other matters a 
simple majority sufficed for the validity of the resolution. 

It was competent, however, to each Canton separately to 
conclude with Foreign Powers treaties which had for their 
object regulations of revenue and police ; provided always 
that they did not conflict with the Federal Convention, the 
existing Alliances, or the Constitutional Rights of other 
Cantons. The Confederation had a common army and 
treasure, supported by levies of men and contributions of 
money, according to flxed proportions, from each Canton. 

The Diet was responsible for the internal and external 
security of the Confederation. It appointed the command- 
ing officers, and directed the operations of the Federal army, 
and moreover nominated the Federal Ministers at Foreign 
Courts. 

CXV. Since the year 1830 the separate constitution of 
each of the Cantons has received a more or less democratic 
modification. Bfile, Unterwalden, and Appenzell have been 
subdivided, and the subdivisions added to the number of the 
Confederated Cantons, which is thereby increased to twenty- 
five ; but the number of votes in the Diet was still limited 
to twenty-two, each division of these three Cantons enjoy- 
mg only half a vote. 



184 .lNT£RNATI(M|ALL’l.AliL 

CXVa. The^hst reiwiott of the 'SwiB8 ;Pei4^ Constit^^ 
tion took place in 1C^4. \ / 

By the Cbns(Stati<nQ(_tbeii framed; the, peoples of the 
twentj'two Canto^ are nnited into a CohfederatKm, the 
objects of tiipbk d^lared to be tiie - security of the 
national idd^eni^nce, 4hb mainlenance of ini^eniid tran- 
quillity and, order^ the protection of the liberj^ and j^hts 
of the confederate peoples, and the increase of their eomnuMi 
prosperity (Arts. 1,2). ' > 

The Cantons are sovereign in w far as their sovereignty 
4s not limited by the Federal Cbi^tution, atid exercise all 
the rights which are not delegated to the Federal authority 
(Art. 3). The C^ederation guarantees the territory of the 
Cantons, their sovereignty within the limits already fixed, the 
liberty and the rights of the people, the constitutional rights 
of the citizens, as well as the rights and privileges conferred 
upon the authorities. The Cantonal Constitution must be 
republican (Arts. 5, 6). 

Any special alliance or treaty of a political nature between 
two or more Cantons is forbidden ; but conventions be . 
made, subject to the supervision of the Federal authority on 
matters of legislative administration and justice. The Con- 
federation alone has the power of declaring war and making 
peace, and of making alliances and treaties with other 
nations ; but individual Cantons may make treaties with 
other States as to matters of public economy {economie 
puhlique)t the necessary relations between two neighbour- 
ing countries, and matters of police (Arts. 7, 8, 9). 

Official intercourse between Cantons and foreign Govern- 
ments or their representatives is carried on through the 
Federal Council (Art. 10). 

The supreme authority is vested in the Federal Assembly, 
which consists of a National Council, elected by direct repre- 
sentation, one member for every 20,000 persons or fraction 
over 10,000 in each Canton ; and a Council of Cantons, to 
which each Canton sends two members, the half-Canton one 
(Arts. 71, 72, 73, 80). 



r ' 83^189 'COi^FEDERATIOlf;. 18$ . 

. . The [SuperiQr'.|gt8Qi).tiTe authority is exe)r|isedby aFeckrll 
Coundl W sey^y ehoien by the Fed^ Aaiemblyy ene oi 
^hom- is ajturaally ehoseiL JPrendeot of the Confederation 
'(Arta. 95, ff6i tojl ' i- , 

The Federal Aaeembly decides ainpng othe»jinatteTs as to 
alliaiices and treatbs npith 'For^in States, and takes the 
measures necessary to preserve extemu security and the 
mdepeadence and neutrality of the country. It makes war 
and peace ; disposes of the Federal army and the Federal 
budget (Art 85). », 

The Federal Council the executive authority for aU: 
these purposes (Art. ld2). 

A Federal tribunal is established to^ecide dvil differ* 
ences between the Confederation on me one hand, and 
particular Cantons, corporations, and individuals on the 
other; and similarly between two or more Cantons or between 
Cantons and corporatione or individuals (Art 110, 113). 

It sits farther with a jury as a criminal tribunal, to decide 
among other things cases of high treason against the Con- 
federation, revolt or violence against the Federal authorities, 
ami crimes and offences against the law of nations (Art 
112 ). 

This Constitution is subject to revision ; but the revised 
Constitution only acquires force when it has been voted by 
the majority of Cantons, and by the majority of Swiss 
citizens taking part in the voting (Arts. 118, 121). 

The Constitution of 1874, it should be noticed, was not 
adopted without considerable differences of opinion. It was 
submitted to the popular vote ; when 340,199 citizens voted 
for it, and 198,013 against it; 14 J Cantons voted for it, 
and against it (/). 

Before the French Bevolution, it was competent to each 
Canton to enter into a special alliance both with another 

(/) I desite to express my obligationa to the piesent Agent and 

*^***m'?®®*“*^ of Switzerland, Mr. H, Vemet, for supplying me with 
^ ^cial copy of the Constihdian FH^nde de la C<a^idir(a{(M Suku 
»»29»k«,l874. 



186 INTEBNATIO^AL LAW^ 

Canton and willi a Foreign State (^) ; but . it is clear, from 
what has been stated, that no individual member of this 
Federal Body, since the Federal Act of 1816, has the 
character and position — or, as civilians say, the persona 
standi— rof a separate independent nation. 

CXVl. This subject should not be dismissed without the 
observation, that one of the Swiss Cantons, Neuch&tel, 
formerly bore the title of a Principality, and was placed 
in some, though it may be doubtful in what, degree under 
the Suzerainete of the Xing of Prussia (A). 

' After the death of Marie de Longucville, Duchess of 
Nemours, in 1707, the States of Neuchd.tel transferred the 
fief of their principitlity to the King of Prussia, as the repre- 
sentative of the House of Chalons, with a reservation of their 
liberties and of their Treaties of Alliance with the Swiss 
Cantons. 

The ninth arti^je of the Treaty of Utrecht recognized this 
act of the States of Nench&tel, and so the relations between 
Prussia and Neuchatcl continued till 1805, when Prussia 
ceded the Principality to Napoleon. It was restored, how- 
ever, at the Peace of Paris, to Prussia, from whom, in 1814, 
it received a new constitutional form of government. But 
Neuchdtel was subsequently admitted into the new Helvetic 

(ff) Merlin, Bipertcire de Jurisprudence, tit. '' Ministre public.” 

WTieatan, EUtn. i. pp. 73, 74. Amtuaire dee Deux Mondes, 1860, 
p.294; 1861-2, p. 188. 

(A) ** Extrait du Manifeste public par rAmbasaadeor du Boy de Frusse 
«u sujet dee aflaires de Neufch&tel, 1707.”— -<S'c6mauM, ii. p. 1206; 

^‘Articles g6n6raux dress^a ct proposes au nom, etc. de la Princi- 
pality de Neufchatel et de Yalaugin — ogiyys et accordys par I’Ambas- 
eadeor de 8. M. le Boy de Prosse, 1707.” — lb, p. 1209. 

“Mymoire, etc., 1707.”— 76. pp. 1211, 1212. 

“Articles accordys par le Boy de Prusse, Ftydyric I, & la rille de 
Neufchlitcl, 1707.” — Sehtnauw, ii. p. 1213, in which the King of Praeiua 
is described (p. 1217) as “ Prince ^uverain de Neufch&tel et Valehgin.” 

In the Treaty of Utrecht (1713) the authority of the King of Prussia 
is fully recognized. — 76. p. 1301, and p. 1369, art. ix. of that part of the 
treaty which concerns the relations of France and Prusda. The King 
of Prussia is acknowledged “pro supremo Domino IMncipatus Neo- 
Otstri et VellenguB'’^ 




SWISS COKFEDEKATION. 187 

Confederation, its relations to which were defined by the 
9th article (i) of the Aett (April 7, 1815) which reunited 
Neuch&tel, Geneva, and Valais to the Helvetic Confedera- 
tion, and declared that ** the sovereign State of Neuchdtel 
<<is received as a Canton into the Swiss Confederation. 
“ This reception takes place under the express condition that 
** the fulfilment of all the duties which devolve upon the 
<< State of Neuchdtel as a member of the Confederation, the 

participation of that State in deliberations on the general 
** affairs of Switzerland, the ratification and performance of 
“ the resolutions of the Diet, shall exclusively concern the 

Government residing in ^N'euchitel, without requiring any. 
“ further sanction or assent.” 

CXVII. In 1847-8, Switzerland, like the rest of Europe, 
was agitated by a civil war, with respect to which the 
States of NeuchiLtel resolved to maintain a strict neutrality. 
The King of Prussia supported them in this resolution ; but 
the extreme party constituting the then majority in the 
Swiss Diet declared that this resolution was inconsistent 
with'the terms of the stipulation by which Neuch&tel was 
incorporated into the union (J). After undergoing the evils 
of a revolutionary war, Neuch&tel returned to its ancient 
relations with Prussia tA). But in 1857 Prussia renounced 
her rights over this Principality, which became a member of 
the Helvetic Confederation. 

(t) Martens, t. iv. pp. 168, 170: Aufuahmsurkunde des Oantons 
y^euenbmy,” 

(j) Armuaire Mstorique univeml, 1848-8, ch. viii. p. 616; Suisse, 
I860, ch. vii. p. 487. 

(k) "Neudiatel ist seit dem Wiener Congrees-AWhied ein souve- 
niner (monarchisclier) Schweizer Oanton.” — Note of Morstadt (1861) to 
ais edition of AluiWt VoOcerrecht. 

Amuatre des Deux Mondes, 1860, p. 801. 



188 


lNT£ttNAT10NAL LAW. 


CHAPTER V. 

UNITED STATES OF NOBTH AHEBICA. 

CXVllI. The United States of North America (a) 
furnish the greatest example which the world has yet seen 
of a Federal Government. 

The constitution of the United States of North America 
differs materially from that of the Germanic Confederation : 
the latter was a league of Sovereign States for their common 
defence against external and internal violence ; the former 
is a Supreme Federal Government — it is, in fact, a CompO' 
site State, the constitution of which affects not only members 
of the Union, but all its citizens, both in their individual and 
in their corjmrate capacities (5). 

According to the language of the Charter or Act of the 
Constitution, it was established by *‘the people of the 
** United States, in order to form a more perfect union, 
** establish justice, ensure domestic tranquillity, provide for 
“ the common defence, promote the general welfare, and 
** secure the blessings of liberty to them and their posterity.” 
The Legislative power of the Union is vested in a Congress, 
consisting of a Senate, the members of which are chosen by 
the local legislatures of the several States, and of a House 
of Representatives, chosen by the people in each State. 

The Executive power is lodged in a President, chosen by 
electors appointed in each State according as the l^slature 

(a) WheatotCt Intemationd Lava; Story's CommaUaries o» 
OnutitutHm the United States; Ken^s Conrnentaries on American 
Law. 

(jk) Texas v. White, 7 Wdlacds Beports in the Supreme Courts 660. 



UNITED STATES OF NORTH AMERICA. 


189 


thereof msy direct. The powers of Congress and of the 
President, so far as they affect the International relations 
of the United States with other countries, are expressed in 
the following articles of the Constitution, which was finally 
ratified by the thirteen States in 1790 (c):~ 

Art. I. — Sect. 8. 

CXIX. ‘M. To lay and collect taxes, duties, imposts, 

« and excises, to pay the debts and provide for the common 
» defence and general welfare of the United States; but all 
“ duties, imposts, and excises shall be uniform throughout 

the United States. 

« 2. To borrow money on the credit of tiie United States. 

“3. To regulate commerce with foreign nations, and 

among the several States, and with the Indian tribes. 

** 4. To establish an uniform rule of naturalization, and 
“ uniform laws on the subject of bankruptcies throughout 
“ the United States.” 

10. To define and punish piracies and felonies com- 
"nutted on the high seas, and offences against the law of 
" nations. 

"11. To declare war, grant letters of marque and re- 
" prisal, and make rules concerning captures on land and 
“ water” (rf). 

Sect. 10. 

" 1. No State shall enter into any treaty, alliance,or con- 
" federation; grant letters of marque and reprisal; coin 
“ money ; emit bills of credit ; make anything but gold and 
" silver coin a tender in payment of debts ; pass any bill of 
“ attainder, ex-posUfacto law, or law impairing the obliga- 
" tion of contracts, or grant any title of nobility. 

"2. No State shall, without the consent of ^e Congress, 
** lay any imposts or duties on imports or exports, except 


(c) 7^ Axtides of the Cmfeioratim were finally latifledin 1781. It 
was Bupeiaefied hy the Oo/niitUnltion in 1790. 

(<0 Commmtann on Vie Cmiditution ef the United SMee, 

PP. xai., xxil of « The OonaUtution.” 



190 INTERNATIONAL LAW. 

** what may be absolutely necessary for executing its in- 
“ spection laws ; and the nett produce of all duties and im- 
** posts, laid by any State on imports or exports, shall be for 
the use of the Treasury of the United States ; and all such 
laws shall be subject to the revision and control of the 
**X)ongress. No State shall, without the consent of Con- 
“ gress, lay any duty of tonnage, keep troops or ships of 
war in time of peace, enter into any agreement or com- 
pact with another State or with a Foreign Power, or en- 
** gage in war, unless actually invaded, or in such imminent 
danger as will not admit of delay ’*(e). 


Art. II. — Sect. 2. 

*‘2. The President shall have power, by and with the 
** advice and consent of the Senate, to make treaties, pro- 
vided two-thirds of the Senators present concur ; and he 
shall nominate, and by and with the advice and consent ot 
** the Senate shall appoint ambassadors, other public ministers 
" and consuls, judges of the Supreme Court, and all other 
** officers of the United States whose appointments are not 
** herein otherwise provided for, and which shall be estab- 
" lished by law : but the Congress may by law vest the ap- 
** pointment of such inferior officers as they think proper in 
** the President alone, in the Courts of Law, or in the heads 
“ of departments (/). 

Sect. 3. 

** 1. He shall from time to time give to the Congress in- 
formation of the state of the Union, and recommend to 
" their consideration such measures as he shall judge neces- 
** sary and expedient. He may, on extraordinary occasions, 
** convene both Houses, or either of them ; and in case of 
" disagreement between them with respect to the time of 
adjournment, he may adjourn them to such time as he shall 
think proper. He shall receive ambassadors and other 
** public ministers. He shall take care that the laws be 


(«) Slory, p. xxiv. 


(/) lb. p, xxvL 



UNITED STATES OP NORTH AMERICA. 


191 


Kfaithfiillj executed, and shall commission all the officers of 
the United States ” {g). 

Art. III. — Sect. 1. 

« 1. The judicial power of the United States shall be 
« vested in one Supreme Court, and in such Inferior Courts 
« as the Congress may from time to time ordain and establish. 

» The judges, both of the Supreme and Inferior Courts, shall 
“ hold their offices during good behaviour, and shall, at stated 
times, receive for their services a compensation, which shall 
« not be diminished during their continuance in office ” (A). 

Sect 2. 

“ 1. The judicial power shall extend to all cases, in law 
“ and equity, arising under this Constitution, — the laws of 
the United States, and treaties made, or which shall be 
made, under their authority ; to all cases affecting ambas- 
sadors, other public ministers, and consuls ; to all cases of 
** Admiralty and maritime jurisdiction ; to controversies to 
“ which the United States shall be a party; to controversies 
between two or more States, between a State and citizens 
“of another State, between citizens of different States, 
“ between citizens of the same State claiming lands under 
“ grants of different States, and between a State, or the 
“ citizens thereof, and Foreign States, citizens or subjects (i). 

“2. In all cases affecting ambassadors; other public 
“ ministers, and consuls, and those in which a State shall be 
“ a party, the Supreme Court shall have original jurisdiction. 
“In all the other cases before mentioned, the Supreme 
“ Court shall have appellate jurisdiction, both as to law and 
“ fact, with such exceptions and under such regulations as 
“the Congress shall make”(^'). 

Art. IV.— Sect. 2. 

“ i. The mtizens of each State shall be entitled to all 
pnvileges and immunities of citizens in the several 
“States” (A). 



192 


llfTEaKAtlONAL LAW. 


Sect. 3. 

“1. New States may be admitted by the Congress into 
Union, but no new State shall be formed or erected 
" within the jurisdiction of any other State, nor any State be 

formed by the junction of two or more States, or parts of 
** States, without the consent of the le^latures of the States 
** concerned, as well as of the Congress ” (1). 

It is remarkable that no provision on this subject is to be 
found in the Articles of the Confederation finally ratified in 
1781. The contingency of the establishment of new States 
within the limits of the Union seems to have been wholly 
overlooked by the framers of the instrument of the Confede- 
ration. Under the provisions of the present article vast 
regions first organized as Territories have subsequently been 
admitted as States into the Union, upon an equality with 
the original States (m). 

With respect to a “ Territory ” not yet admitted into the 
category of a State, the Supreme Court has laid down the 
law as follows ; — 

** The United States, under its present Constitution, 
"cannot acquire territory to be held as a colony to be 
" governed at its will and pleasure. But it may acquire 
" territory, which, at the time, has not a population that fits 
" it to become a State, and may govern it as a Territory until 
" it has a population which, in the judgment of Congress, 
" entitles it to be admitted as a State of the Union. During 

the time it remmns a Territory, Congress may legislate 
" over it within the scope of its constitutional powers in 
" relation to citizens of the United States, and may establish 

(2) Storyf p. xnx. — See opinions of the Attorney-General of the 
United States (published at Washingfton, 1811), vol. i. p. 811, as to the 
conditions under which the State of lUinois entex^ the Union, 

** Resolution du Oongrte des Etats-Unis pour I’admistion du Texas au 
sombre des Etats de ITTnion du 22 decembre, 1846.'’ — Fide DeM.etde 

am. 

(m) StoTjf, b. iii. c. xxx. 

7%e Neuiral&jf of Great Britam durtnff the Amerieem CSvS 
— JIf. Bernard, 1870. 



UNITED STATES OP NORTH AMERICA. 


193 


Territorial Government; and the form of this local 
“Government must be regulated by the discretion of 
‘ “ Congress, but with powers not exceeding those which 
“Congress itself, by the Constitution, is authorized to 
“ exercise over citizens of the United States, in respect to 
“ their rights of person or rights of property. The territory 
“ thus acquired is acquired by the people of the United 
“ States for their common and equal benefit ; and every 
“ citizen has a right to take with him into the territory any 
“article of property, including his slaves, which the 
“Constitution recognizes as property, and pledges the 
“ Federal Government for its protection ” («). 

This last proposition has been much controverted ; though 
happily, since the abolition of slavery, that controversy has 
ceased to be important. 

“2. The Congress shall have power to dispose of and 
“ make all needful rules and regulations respecting the terri- 
“ tory or other property belonging to the United States ; 
“ and nothing in this Constitution shall be so construed as 
“ to prejudice any claims of the United States, or of any 
“ particular State ”(/>). 

Sect. 4. 

" 1. The United States shall guarantee to every State in 
•‘this Union a republican form of government, and shall 
“ protect each of them against invasion ; and on application 
“ of the Legislature, or of the Executive (when the Legisla- 
“ ture cannot be convened), against domestic violence ” (/>). 

Art. VI. 

“ 2. This Constitution, and the laws of the United States 
“ which shall be made in pursuance thereof, and all treaties 
“made, or which shall be made, under the authority of the 
“ United States, shall be the supreme law of the land ; and 
“the judges in every State shall be bound thereby, anything 

(n) Dred Sadt v. Sandfurd, 19 Howards Rep. 896. 

(o) ®ory, p. xadx. (p) Story, p. xxix. 

VOL. I. 


O 



194 


INTEUNATIONAL LAW. 


“ in the constitution or laws of any State to the contrar}' 
“ notwithstanding ” (g). 

Art. XI.*-Ambndments. 

The judicial power of the United States shall not be 
“ construed to extend to any suit in law or equity com- 
menced or prosecuted against one of the United States by 
“ citizens of another Statc^ or by citizens or subjects of any 
“ Foreign State ” (r). 

CXX. It is clear from this account of the Constitution 
of the United States of North America that the whole 
Federal Body is responsible for the International acts, so to 
speak, of each State, and of the individuals composing 
them. For example, if the government of either of the 
Carolinas inflict an injury upon a foreign nation, that nation 
must direct its complaints to, and seek its redress from, the 
Federal Government. 

The proposition that each State of the Union is separately 
responsible for its own misconduct, but that the attempt by 
a Foreign State to enforce its claims for redress against an 
individual State would be resisted by the whole Federal 
Body, is a proposition wholly untenable in reason or law. 
Joint responsibility must accompany joint protection ; there- 
fore the strengthening of the hands of the American Execu- 
tive has been desired by her ablest statesmen and jurists, as 
well as by Foreign Powers, in order that she may be the 
more readily able to fulfil her International obligations (a). 


(q) Story, p. xxx. (r) Ib. p, xxxiu. 

(«) Wheaton, vol. i. p. 74 : Puifique les relations de ces EtsU 
avec des Etats etrangers, en pux et en guerre, sont maintenues par le 
gouvernement f4d4ral, tandis qull est expressement dSfendu aux Etats 
Isolds de I’Union d’exercer ces actes de souverainet4 extSrieure, ii 
evident que la souverainetj extdrieure de la nation r4ado exclusivement 
dans le gouvemement f4d4ral. L’ind4pendance de chaqne Etat se trouve 
done sous ce rapport confondne dans la souvenunet^ du gouvemement 
f4d^ial, et Ton peut par suite qualifier I’Union am4ricaine do Sundoh 
rinat." 



UNITED STATES OP NOKTH AMEBICA. 


195 


This desired result seems to have been in some degree 
attained during the interval between the first and the present 
edition of these Commentaries. 

The recent civil war between the Southern and Northern 
States^ and the conquest of the latter after a fierce and 
desperate contest, has not so affected the permanent In- 
ternational relations of the Confederation with Foreign 
States as to require any special notice in this place. 
'Whether a correct view of the constitution and of the facts 
of the case was, or was not, taken by the Southern States, 
who maintained that they formed part of the Union upon 
conditions expressed in the terms of the Great Charter of 
tl)e Constitution, and that the violation of -them justified 
their secession ; or by the Northern States, who maintained 
that this secession was unjustifiable in fact and an act of 
treason in law — ^whether the employment of armies by the 
Northern States to coerce the Southern States, and compel 
them to remain in an Union which they desired to leave, was, 
or was not, in accordance with the principle of freedom upon 
which the United States justified their secession from Great 
Britain (t), are not subjects to be discussed even indirectly 
in this chapter. 


Ofmdom of the Attorney-General of the Jinked States, toI, i. Letter 
of the Attorney-General, dated November 20, 1821, p. 892. “ Tlie people 
of the United States seem to liave contemplated the National Govern- 
mont as the solo and exclusive organ of intercoui'se with foreign nations. 
It ought, therefore, to he armed with power to satisfy all fedr and proper 
demands which foreign nations may make on our justice and courtesy ; 
or, in other words, with power to reciprocate with foreign nations the 
fulfilment of all the moi^ ohligations, perfect and impeidect, which the 
baw of Nations devolves upon us as a nation. In this respect, our 
system appears to be crippled and imperfect.” 

^ the correspondence relating to the project of annexing Cuba to 
the United States, laid before Parliament April 11, 1863, and espe- 
cially the English Formgn Secretary’s (Lord John RusseWe) letter of 
February 16, 1868. 

(0 President Buchanan, in the annual address of 1860, express^ his 
riear and strong ojduion in the negative,— Sey. 1860, pp. 283-4. 
"*it see President Johnson’s address, 1866, Ann, Meg. p. 293. 



196 


INTERNATIONAL LAW. 


Many interesting and important questions of International 
Law were indeed discussed daring the progress of the civil 
war, which must be considered under their proper heads in 
other parts of this work. 

CXXI. The Central and South American Republics, 
since the establishment of their independences, have under- 
gone, and will probably yet undergo, frequent divisions and 
subdivisions. The existing Federal Republics are those of 
Mexico (n), the United States of Rio de la Plata, or the 
Argentine Republic, and the United States of Colombia. 
In these Federal Republics there is a general Congress, 
which superintends the relations of the Republics with 
Foreign States (r). 

The whole of America is under the government of 
Christians, being either Europeans or of European descent ; 
this vast continent therefore must be presumed to recognize, 
not only the obligations of general International Law, but 
the positive maxims of the European code. This continent 
is at present parcelled out into the following States. 

There are seven Republics in North and Central America, 
viz : — 


United States. 

Mexico, Confederate Itepublic of 
Guatemala. 

Honduras. 

San Salvador. 

Costa Rica. 

Nicaragua. 



1 27 States, a Federal Distiict 
lof Mexico, and 1 Territory. 


The Republics of South America are nine in number, as 
follows : — 


(u) I have not thought it necessary to notice the short-lived and nn- 
fortunate Empire of Mexico. 

(a) Mliots Ammean Diplomatic Codes, vol. ii. part iii. Treaties with 
the new nations of South America. 

Hertsld's commercial treaties contain nearly all the various conventions 
between Great Britmn and the Central and South American States. 

. A treaty with the State Equator, signed at Quito, May S, 1661, was 
laid before Parliament in that year. 

Amuaire des Deux Mondes, 1850, pp. 885, 1104. 




CENTRAL AND SOUTH AMERICAN REPUBLICS. 197 


t or, United States of Bio de 
la Plata, 14 in number : ca- 
{dtal, Bnenos Ayres. 

Peru. 

( formerly Now Granada, con- 
sisling of 9 States and GTorri* 
tories: capital, Bogota. 

Bolivia. 

Chili. 

Yenesuela. 

Ecuador. 

Paraguay. 

Ui-uguay ; or, Banda Oriental : capital, Monte Video. 

There is one American monarchy of great territorial 
extent — Brazil ; and there are two republics which divide 
the island of San Domingo (y), viz. San Domingo and Hayti. 
The British American provinces are ; — 

Quebec. 

Ontono. 

Now Brunswick. 

Nova Scotia, with Cepe Bivton. 

Prince Edward's Island. 

British Columbia, with Yaucouver's Island. 

Manitoba. 

North-west Territories. 

Newfoundland. 

Honduras. 

British Giuana (a). 

In 1864 certain resolutions were adopted at a Conference 
of Delegates from the British North American Colonies as 
the basis of a proposed Confederation (a) ; and in 1867 the 
Earl of Carnarvon introduced into Parliament the North 
American Provinces Confederation Bill. The Bill provided 
that there should be a Governor-General, appointed by the 

Cv) The republic of llayti is in the French, the republic of San 
^mingo in the Spanish part of the island. As to the claim of Spfdn to 
San Domingo, and the nominal cession, in 1861, to her of it by the 
ItepublicBn Preadents and the protest of Peru, see pp. 148-160, t, iv. 2* 
partie, Jtee, gin. cont. of MesrietUf by Sanmer, 

(<) The French and the Dutch have also colonies in Guiana. 

(«) Am. Reg. 1864, p. 208. 


Forming the 
Dominion 
of Caimda. 



198 


INTEENATIONAL LAW. 


Crown, receiving a salary from the Colonial funds. The 
Lieutenant-Governors of the respective provinces were to 
be appointed by the Governor-General, to hold office for 
five years. There was to be a general or central Farlia- 
ment for the united Confederation, and local Legislatures 
for each province ; the central Parliament to consist of an 
Upper Chamber and Lower House ; the seventy-two members 
of the first to he elected for life, with power to the Crown 
to nominate not more than six members in certain cases ; the 
Lower Chamber to consist of 181 members, to be elected for 
five years. The provincial Legislatures would be left to deal 
with all purely local matters, while all questions common to 
all the Confederated Provinces would be disposed of by the 
central Parliament. The Delegates themselves suggested 
Canada as the name for the new Confederation, and the 
Queen gave her assent to that designation being adopted by 
it. The plan did not include Prince Edward’s Island, 
British Columbia, Newfoundland, or Vancouver’s Island; 
but it was to be hoped that in time those colonies would 
join the Confederation (i). 

The Act of the Imperial Parliament containuig these 
provisions for the Union of the provinces of Canada, Nova 
Scotia, and New Brunswick passed soon afterwards, and it 
enacted that the Queen in Council might declare, by Pro- 
clamation, within six months from the passing of the Act, 
that those provinces should form one Dominion under the 
name of Canada, and that ** such persons shall be first sum- 

moned to the Senate as the Queen by warrant, under her 
“ Majesty’s royal sign manual, thinks fit to approve, and 
** their names shall be inserted in the Queen’s Proclamation 
“of Union.” 

(i) Ann. Reg. .7867, pp. 11, 2S1. In 1870 the province of Manitohs 
was formed, and admitted into the TJnion, together with the residno of 
the Hadaon’s Bay territory, now called the North-west Territories." 
British Columbia, with which Vanconveris Island bad been incorporated, 
joined in 1871, and Prince Edward’s Island in 1873. Newfoundland alone 
remains outside. 



PRIVATE ASSOCIATIONS. 


199 


A Royal Proclamation was accordingly issued on the 2 let 
of May, in which the persons were named who were to be 
first summoned to the Senate of Canada. The total number 
of these was seventy-two, thus distributed ; twenty-four for 
the province of Ontario, twenty-four for the province of 
Quebec, twelve for the province of Nova Scotia, and twelve 
for the province of New Brunswick. The new Canadian 
Parliament was opened at Ottawa, the capital of the Con- 
federation, by the Governor-General, Lord Monck, on the 
7th of November, 1867 (c). 

CXXII. It is clear that no private associations (d) or 
companies can be how considered as substantive members of 
the community of States. The ancient confederation of the 
Hanse Towns is scarcely to be classed under the category of 
these private companies, which had at one time, as a distinct 
Federal Body, a persona standi in International Law. No 
analogy, however, can be derived even from them, applic- 
able to modem companies, associated for the purpose of 
trade. 

The British East India Company, which has now ceased 
to exist, has indeed exercised sovereign rights in respect to 
foreign nations, has made war and concluded treaties in its 
own name with I n dian princes ; but this power was delegated 
to it by the Crown and Parliament of England, and therefore 
the responsibility for the International acts of the Company 
rested upon Great Britain, as much as the acts of any other 
of her accredited public agents ; and this Company had no 
International stains as a substantive community (c). States 
associated, for the purposes of trade, into a commercial 
league (/) may have a sort of International, or rather 

(c) Ann. Reg. 1867, p. 281. 

Seffters, ss. l.S-^. W^mtorCs Elhn, 1. ii. c. i. s. 6, p. ix. Martens, 
t rai. c. ii. 88. 26&-264. Vattei, 1. iii. c. i. 8. 4. De M, et de C. 1. i. 
Index; Ompagnie Anglaise dee hides. 

(«) See the case of the NahcA of the Carnatic v. Hast India Comjamg, 
I Veseig, Jr. p. 871, and 2 Jh. pp. 66-60, as to the fonner anomalous 
Intentalional as well as National condition of the East India Gompaii}'. 

(/) Smer, 88. 160-163. Heffters, 8s. 8, 93. 



200 


INTBKNATIONAL LAAV. 


Public Law regulating the intercourse between the members 
of the league (^), upon the principle of the ancient adi^e, 
“ Vbi societas ibi jus est ; ” but States which are not members 
of this league are not bound to regard those, who are such, as 
being clothed, on that account, with any peculiar privileges 
in their general International relations. 

CXXIII. This observation is applicable to all associations 
of States which are not founded upon universal principles of 
International Law, but framed for the advancement of some 
particular object : such, for instance, as associations for the 
suppression of the slave trade, or the great German commer> 
cial confederation called the Zollverein (A). 

(ff) For example: 1. Equality of rights and obligations among the 
members. 2. Apportiomneut of the common burdens according to the 
means and strength of each individual member. 3. That the original 
conditions of the association cannot be altered without the consent of 
every member, &c. — Fide liters, lb. 

(h) \DeM. tt.de C. Index to this title, and in Martens, Nimv. Itec. xir. 
Latureneda WAeaton (French ed.) i. 36&-S76. 



EXTINCTION OF A STATE. 


201 


CHAPTER VI, 

EXTINCTION OF A STATE. 

CXXIV. A State, like an individual, may die; its 
corporate capacity may be extinguished, its body politic may 
peiish, though the individual members of it may survive. 

CXXV. It ceases to exist when the physical destruction 
of all its members takes place, or when they all migrate into 
another territory — events scarcely to be contemplated as 
IMWsible in the present times — or when the social bond is 
loosed, which may happen either by the voluntary or com- 
pulsory incorporation of the nation into another sovereignty, 
or by its submission, and the donation of itself, as it were, 
to another country. On the happening of any of these contin- 
gencies (a), a State becomes, instead of a distinct and substan- 
tive body, the subordinate portion of another society. The 
incorjxiration of Wales and Scotland into, and of Ireland with, 
Great Britain; of Xormandy, Brittany, and other provinces 
into France, are among the most familiar historical instances 
which illustrate this proposition. To these may now be 
added the Kingdom of Italy, composed of States which have 
sought to be incorporated in her ; and Prussia, which has 
by force of arms possessed herself of her weaker neighbours’ 
territories. 


(a) VaM, Lie. xvi. 194. Hfifften, b. i. 8. 24. Kliiber, pt. i. c. i. 
a 23, Siutherforth, b. ii. c. x, as. 12, 13. JFheaton’s Him. i. 33. 



202 


INTERNATIONAL LAV. 


CHAPTER VII. 

CHANGES IN A STATE. 

CXXVI. But a State may undergo most important and 
extensive changes without losing its personality (a). It may 
be stripped of a portion of its subjects and its territory ; it 
may place itself under the protection of another State, and be 
reduced to a semi-sovereignty ; thereby, indeed, as has been 
shown, materially affecting its external relations, though 
retaining, in many respects, its corporate character : it may 
change its form of civil constitution or government from a 
Republic to a limited Monarchy, from an Aristocracy to a 
Despotism, or to any imaginable shape; but it does not 
thereby lose its personality, and does not therefore forfeit its 
rights, or become discharged from its obligations. The nation 

(a) Grotiug, lib. ii. c. ix. iii. L Idem si populns. Dixit Tgocmtcii, 
et poet eum JuUanus imperator, dvitates esse immortales, id est, esse 
posse, quia scilicet populns ost ex co corporum genere, quod ex dlsttui* 
tibus constat, unique nomiui subjectum est, quod habet ftiau, ut 
riutarchus ; spiritum umim, ut Paulus .Turisconsultus loquitur. Is 
autem spiritns, sive «{(;, in populo est vitae civilis consociatio plena 
atque perfects, enjus prima productio est summnm imperium, vinculiun, 
per quod respublica cobseret, spiritus vitalis quem tot raillia trahnnt, iit 
Seneca loquitur. Plane autem corpora hacc artificialia instar habent 
corporis naturalis. Corpus naturale idem esse non desinit, pardculis 
paulatim commutads, una manente specie, ut Alpbenus ex pbilosophis 
disserit.” This opinion of Alfenus is to be found in the Digest, 1. v. t. L 76 : 
“De jtidiciis et ubi quisqne agere vel convenire potest.” A tribunal 
had bMn composed originally of certtun judges ; some of them during 
the hearing of the causes had retired, and others been substituted in 
their place : ‘^Quesrebatur, singulorum judicum mutatio emdem rem an 
aliud judicium fedsse. Pespondi, non modo si unns aut alter, sed et si 
omnes judices mutati essent, tamen et rem eandem et judidum nlen^ 
quod antea fuisset, permanere.” 



CHANGES IN A STATE. 


20.3 


now governed by a Despot must pay the debt which she 
incurred under a Republican Government ; the treaty con- 
tracted by a nation when represented to the rest of the world 
by the executive of a limited Monarchy, is equally binding 
upon her when she has fallen under the rule of an Oligarchy. 

CXXVII. This vital principle of International Law is a 
necessary and principal consequence flowing from the doctrine 
of the moral personality and actual intercommunion of States. 
The Legion, the Roman jurist said, is the same though the 
members of it are changed ; the Ship is the same though the 
planks of it are renewed ; the Individual is the same though 
the particles of his body may not be the same in his youth 
as in his old age, and so populum eundem hoc tempore 

piitari qui abhinc centum annis fuisset.” 

CXXVIII. The learned and wise Savigny, discussing the 
proper manner of cultivating and improving the municipal 
law of a country, expresses an opinion pregnant with true 
philosophy, when he observes that there is no such thing as 
the entirdy individual and severed existence of mankind ; but 
that, as i|very individual man must be considered as the 
member of a family, a people, and a State, so every age of a 
people must be regarded as the continuance and development 
of times that are past (b). Every age does not produce its 
own world according to its own arbitrary will and for itself 
only, but it does this in indissoluble intercommunion with 
the whole past (c). Every age, therefore, must acknowledge, 

(ft) Shokapeare puts this reasoning into tho mouth of the Duke of 
York:— 

Take Hereford’s rights away, and take from Time 
His charters and his customary rights ; 

Jjet not to-morrow then ensue to-day; 

Be not thyself; for how art thou a king 
But by fair sequence and succession ? ” 

JRich. II, act ii. sc. 1. 

(c) “Our political system is placed in a just correspondence and 
^nunetry with the order of the world and with the mode of existence 
flwre^ to a permanent body composed of trcmdlory parts ; wherein by 
he disposition of a Stupendous Wisdom, so moulding together the great 
Mysterious incorporation of the human race, the whole at one time is 



204 


INTERXATIOKAL LAW. 


as it were, certain data^ the inheritance of necessity, and yet 
not imposed upon it by force : a necessary inheritance, in so 
far as they are not dependent upon the arbitrary will of the 
particular present ; not imposed upon it by force, because 
they are not, like the command of a master to a slave, 
dependent upon the arbitrary will of any particular foreign 
influence; but, on the contrary, are the free produce of 
the higher part of the nature of a people, parts of one 
whole continually existing and continually developing it- 
self. Of this higher part of a people the present age is 
a member, which wills and acts in and with that whole ; 
BO that what is transmitted to us from that whole may be 
said to be freely produced by this particular member of it. 
History, Savigny concludes, is not therefore a mere collec- 
tion of examples, but the only way to the true knowledge of 
our own actual stains (</). Hooker had long before arrived 
at Savigny’s conclusion ; “ To be commanded,” he says, “ we 
" do consent when that Society whereof we are part hath at 
“ any time before consented, witliout revoking the same after 
** by the like universal agreement : wherefore as any man’s 
** deed past is good as long as himself continueth ; so the act 
“ of a public society of men done five hundred years sithence, 
“ standeth as theirs who presently are of the same societies, 

because corporations are immortal: wcwcrc thenalivein our 
“ predecessors, and they in their successors do live still ”(<:)• 

Applying this principle to International relations, we 
learn that as one generation does not constitute a State (/ ), it 

never old, or middle-aged, or young, but in a condition of unchangeable 
constancy moves on through the vaiied tcuour of perpetual decay, fall, 
renovation, and progresrion.”— jPurAe, voL v. p. 79. Thoughts on French 
Jtevduiioa, Jh. 183, 184. 

(<f) “ Ueber don Zweeb der Zeitschrift fiir die geBchichtliche Bedita- 
wisnenschaft.” — Sacigng, Vermischte SchrifteHf 1-110. 

(e) Booker, Eedes, Pol, b. i. 

(/) ** Because a nation is not an idea only of local extent and indivi- 
dual momentary aggregation, but it ia an idea of continuity which extends 
in time as well as in members and in space.”— Works, vol. 
p. 07 : Beform of R^esentation in the Borne of Commons. 



CHANGES IN A STATE. 


205 


is not merely by the obligations contracted by one genera- 
tion that the present State is bound ; the engagements of the 
whether arising from the implied contract of long 
usage, or the express letter of treaty, or the pledge of the 
Executive Gh)vernment, howsoever plighted, are as stringent 
upon her as those of the present. The individual succeeds 
to rights and obligations which he had no share in obtaining 
or contracting ; and still more is this condition predicable of 
every corporate body. Nor is the greatest of all corpora- 
tions, the State, exempt from the operation of a rule which 
is laid in the eternal constitution of things : Coetus quilibet, 
“ non minus quam personas singulares, jus habet se obligandi 
per sc aut per majorem sui partem. Hoc jus transferre 
potest turn expresse turn per consequentiam necessariam, 
“ puta imperium transferendo ” {<j). The rule by which an 
individual’s duties are discovered — namely, by considering 
the place which he occupies in the great system of the uni- 
verse—** qua parte locatus es in re” — furnishes an equally 
sound maxim for national as for individual conduct ** II ne 
“ seroit p*w,” says the Abbe Mably, ** moins superflu de 
** m’arreter d prouver qu’un Prince est li6 par les engage- 
“ mens dc son prddtiCesseur : puisqu’un Prince qui fait un 
*' traitc n’est que le d41€gu6 de sa nation, et que Ics trait^s 
** deviennent pour les peuples qui les ont conclus des lois 
** qu’il n’est jamais perrais de violer.” He proceeds to cite 
a passage from Bodinus to the effect that a King of France 
is not bound by the treaties of his predecessors ; because 
each King of France is only the ** mufructuarius'^ of his 
kingdom, and does not appoint his successor, who has an 
absolute right to the throne ; and observes truly, ** II n’est 
** point de lecteur qui ne sente tons les vices de ce miserable 
“raisonnement”(A). 

CXXIX. The authority of D’Aguesseau (?) and Montes- 

y) Gratms, 1. ii. c. xiv. a. 11, p. 408. 

(A) MtMy, du Droit, public, etc. t. i. pp. Ill, 112. 

, W There are some striking remarks of D’Aguesseau, i. 498, s. 4, os to 
the observance of Treaties. 



J}06 INTERNATIONAL LAW. 

quieu further strengthens a position of such paramount im- 
portance to the peace of the globe. The latter conclusively 
destroys the sophistry by which it has been sometimes at- 
tempted to chicane away the binding force of Treaties, on the 
ground of their having been extorted by that superior force 
which might vitiate a civil contract between individuals (j ). 

It might, indeed, have been supposed that this truth was 
too firmly established, and the value of it too deeply felt 
and too generally recognized, to be liable to question in 
these days. After the overthrow of the Orleans dynasty in 
France, the proclamation of M. de Lamartine (1 848) appeared 
for a moment to throw the weight of France into the oppo- 
site scale, as disavowing the obligations of the treaty of 
Vienna, chiefiy, it would seem, because at the time it wag 
made France was governed by a Monarcliical, and at the 
time it was disavowed by a Kepublican Govemilent (A). 

Now no doctrine more fatal than this to the tranquillity of 
the globe can well be maintained — none which it is more the 
duty of every upholder of International Law to denounce. 
Nor can any doctrine be more pernicious to thjp country 
itself, be it Monarchical or Bepublicau, which propounds it. 

Nulla res,” said Cicero, with all the energy of moral 
wisdom, “ vehementius Ecmpublicam continet quam fides.” 
What becomes of national faith if it be made to depend 
upon a form of Government ? Much what would become of 
individual faith if it depended upon no change happening in 
tlie condition or age of the individual who plighted it. 

eXXX. The importance of the subject ^d not escape 
the notice of Grotius; and 1 do not know that, upon 
such a point, a higher authority can be appealed to: 

Neque refert quomodo gubemetur, regisne, an plurium, 
<< an multitudinia imperio. Idem enim est populus Boma* 


(y) JSiprit de» Lois, 1. xxvi. c. xz.— '^Qu’il ne faut pas decider par 
lesprindpes des Ids civiles les choses qui appartiennent au droit des 
gens.” 

(k) Trots Mots au Pouvoir, par M, de Lamartine, p. 76. 



CHANGES IN A STATE. 


207 


nuS sub regibus, consulibus, imperatoribus. Imo etiamsi 
plenissimo jure regnetur, populus idem erit qui antea erat 
<<cum sui esset juris, dum rex ei pnesit ut caput istius 
“populi, non ut caput alterius populi. Nam imperium 
quod in rege ut in capite, in populo .manet ut in toto, cujus 
<< pars est caput : atque adeo rege, si electus est, aut regis 
** familia extincta, jus imperandi ad populum redit, ut supra 
“ostendimus”(/). 

And in another part of his great work he expresses his 
free and manly opinion on this matter : “ Hue et ilia 
frequens qussstio referenda est de pactis pcrsonalibus ac 
^'rcalibus. Et siquidem cum populo libero actum sit, 
‘‘ dubium non est, quin quod ei promittitur sui natura reale 
“ sit, quia subjectum est res permanens. Imo etiamsi status 
“ civitatis in regnum mutetur, manebit foedus, quia mauet 
“ idem corp^ etsi mutato capite, et, ut supra diximus, im> 
“ perium, quod per regem exercetur, non desinit imperium 
“ esse populi ” (w). With this opinion Heineccius, in his 
commentary upon Grotius, entirely concurs. 

CXX^. An English civilian of considerable note in his 
day, commenting upon this passage, recognizes and adopts the 
doctrine which it conveys : ** All leagues and treaties are 
“ national : and where they are not to expire within a shorter 
time, though made with usurpers, will bind legal princes if 
they succeed, and so vice versa ; and a league made with a 
‘‘ king of any nation will oblige that nation, if they continue 
“free, though the Government should be changed to a 
“Commonwealth, because the nation is still the same 
“ though under different Governments ” (n). 

Vattel, whom Lord Stowell pronounced to be not the least 
indulgent of modern professors of Public Law (n), speaks un- 
hesitatingly to the same effect : “ Puisque les traitds publics, 

(0 Orctim, 1. ii, c. iz. s, 8, 

(m) Ib. 1. ii. Ci xvi. a 16. 

An Enay concerning the Lam of Nations and the Bights of 
Sovereigns, t)y Matthew Tinddtt, LLJ). p. 14 (London, 1734). 

(o) The Maria, 1 C. 1M>, Adm. Bep. p. 168. 



208 


INTEBNATIONAL LAW. 


mSme personnels, condos par un roi, on par tout autre 
souverain qui en a le poovoir, sent trait^s de I’Etat, et 
“ obligent la nation enti^re, les trait^s riels, faits pour sub- 
sister indipendamment de la personne qui les a conclus, 
obligent sans doute les successeurs. L’obligation qu’ils 
‘*imposent d I’Etat passe successivement 4 tons ses con- 
“ductcurs, a mesure qu’ils prennent en main I’autorite 
" publique. II en cst de mime des droits acquis par ces 
trakes. 11s sont acquis k I’Etat, et passcnt k ses con- 
** ducteuTS successifs” (p). And in another place he says : 
“ DIs qu’une puissance legitime contracte au nom de I’Etat, 
“ elle oblige la nation elle-mime, et par consiquent tous les 
conducteurs futurs de la societl. Lors done qu’un prince 
a le pouvoir de contractor au nom de I’Etat, il oblige tous 
** ses successeurs : et ceux-ci ne sont pas moins tenus que 
“ lui-meme & remplir ses engagements ” ( 5 '). % 

CXXXII. The language of Bynkershoek is still more 
forcible. In one passage he observes : “ Bccto dixit Grbtius 
“jus populi non deficere nisi deficiatipse populus. Forma 
“aotem regin;inis mutata non mutatur ipse populus. 

Eadem ntique respublica est, quamvis nunc hoc, nunc alio 
“modo regatur; alioquin diceres, rerapublicam in statu, 
“quo nunc est, exsolutam videri pactis et debitis in alio 
“ statu contractis. De debitis id dicere non licerc consentit 
“Grotius(r). De pactis ut idem dicamus, eadem qum in 
“ debitis obtinet ratio persuaserit ” (s). His chapter “ De 
“ servanda fide pactorum publicorum, et an quse eorum tacitse 
“ exceptiones,” begins : “ Facta privatorum tuetur jus civile, 
“ pacta principum bona fides. Hanc si tollas, tollis mutua 
“ inter principes commercia, quae oiiunture pactis expressis, 
“quin et tollis ipsum jus gentium, quod oritur e pactis 
“ tacitis et prsesumptis, quae ratio et usus inducunt ” (t)* 

(;>) Vdttelf Lt DroU de Gem, 1. u. c. xiL s, 191, p. 400. 

{q) Jh. 1. ii. c. xiv. s. 215. 

(r) De Jure Bd, 1. ii. c. ix. 8. 8, n. 3. 

(«) Q. J. P. L ii. c. XXV. — Varia Quattiuncula. 

(t) Q. J. F. 1. ii. c. X. See, too, Bwrida Trade on the Fopery Lo^t 
c. iii. in fine, as to the ratification of the Treaty of Limfiriclt, 



CHANGES IN A STATE. 


209 


He then proceeds to comment upon the sophistry which 
defends a departure frotn the obligations of treaties : ** Hasc 
** pactis omnibus inesse credit clausulam salutarem^ rebus sic 
** stantibuSj atque adeo a pactis recedi posse : I. Si qua nova 
causa, satis idonea,obvcniat 11. Si res eo deducts sit, unde 
« incipere non possit. III. Si ipsa pactorum ratio cosset. 
“ IV. Si necessitas ac utilitaa reipublicss aliud flagitcnt ” (u). 

The last pretext he denounces as a detestable Machiavel- 
lism — the beast of many heads. Reason nf State, the bane 
« of Princes,” and characterizes the three former excuses as 
totidem ruptse fidei velamenta; ” — and again, in his boldest 
manner, “ Fromissum igitur, si me audias, etiam tunc ser- 
“vandum, cum id servari Beipublicso non expediat, iino 
“ periculosum sit ” (ar). 

CXXXIII. Not less emphatic and decisive is the language 
of the great ^^epublican Confederation of North America : 
“ Nations are at liberty ” (says Mr. Chancellor Kent) “ to 
use their own resources in such manner and to apply them 
“ to such purposes as they may deem best, provided they do 
“ not violate the perfect rights of other nations, nor endanger 
‘‘their safety, nor infringe the indispensable duties of 
" humanity. They may contract alliances with particular 
“nations, and grant or withhold particular privileges, in 
“ their discretion. By positive engagements of this kind a 
“ new class of rights and duties is created, which forms the 
“conventional law of nations, and constitutes the most 
“diffusive, and generally the most important branch of 
“ public jurisprudence. And it is well to be understood, at 
“ a period when alterations in the constitutions of Govern- 
“ ments and revolutions in States are familiar, that it is a 
“ clear positiem of the law of nations that treaties are not 
affected, nor positive obligations of any kind with other 
" Powers or with creditors weakened, by any such mutations. 
A State neither loses any of its rights nor is discharged 

(*<) Syrkenhodt, Q. J, P. 1. ii c. x. 

(*) See, too, Cicero, .De Of. L iii. c. v. 6, 11. 

VOL. 1. p 



210 


INTEUNATIONAL LAW. 


“ from any of its duties by a change in the form of its civil 
government. The body politic is still the same, though it 
“ may have a different organ of communication ”(y). 

CXXXIV. Puffendorf, in his chapter “ De mutatione et 
“ iuteritu civitatura,” adds the authority of Sweden to fortify 
these jmsitions in one of the best chapters of his treatise on 
“ De Jure Naturjc et Gentium ” (z). 

CXXXV. We have, then, this opinion of the continuity 
of the rights and obligations of a State confirmed by the 
unanimous authority of the most celebrated jurists and 
statesmen (a) of all countries. This accumulation of autho- 
litics must not be regarded as an idle parade of evidence, 
because, as has been already observed, a proposition which 


(y) KmC» Commentaries on American Law, vol. i. pp. 25, 20. 

Wheaton {EUm. i. 3<’l) speaks fully to the same eifect: “Tin Etat 
est un corps changeout quant aux membres qui composent la society, 
mais quant k la soci^t^ meme, e'est !e m6me corps dout Texistence est 
perpdtn^ par une succession constante de membres nouveivux. Cette 
existence continue tant qu’aucuu changement fondamental n’a intro- 
d(ut dans I’Etat.” 

(s) L. viii. c. xiv. 

{a) “ L’unitd permanente qui s’^tablit, et le ddveloppement progressif 
qui s’opire par cetto tradition incessante des hommes aux hommes, ot 
des gtSn^ialions aux generations, e'est 1& le genre bumain; e’est suu 
originality et sa grandeur; e’est un des traits qui marquent lliomuie 
pour la sottverainety dans co monde, et pour rimmortnlity au-deU de 
ce monde. 

“ CTest de Id. que dyrivent et par lit que se fondent la fanulle et I’Pltat, 
la propriyty ot I’byrydity, la petltie, I’liistoire, la gloirc, tons les faits et 
toua les sentiments qid constituent la vie itendue et perp6tmUe de 
VhunumiU an milieu de Peqtparitim si bornie ei de la di^arition si 
rapide des mdividm humains. 

“La Itypablique sociale supprime tout cela; elle ne voit dans les 
hommes que des ytres isolys et yphyrngres qui ne panussent dana la rie 
et sur cetto terre, thy&tre de la vie, que pour y prendre lour subsistance 
et leur plaisir, chacun pour son compte senl, an m4me. titre et sous 
autre fin. 

“C’est prycisyment la condition des animaux. Pormi eux, point de 
lien, point d’action qui sunive aux individus et s'ytende i tous; point 
d’appropriation permanente, point de transmission hfrid^tmre, point 
d’ensemble m de progr^s dans la vie de I’espyce; rien que des individus 
qui poraissent et passent, prenant en passant leur part des biens de la 



CHANGES IN A STATE. 


211 


is maintained by the concurrent voice of eminent jurists of 
various civilized countries becomes ipso facto, as it were, a 
part of International law (A). 

CXXXVI. We arrive, then, with confidence at the con- 
clusion, that this reciprocal observance of good faith, whether 
it be plighted to the payment of debts or to the fulfilment of 
the stipulations of treaties (c), is binding u^mn all nations. 
This good faith is the great moral ligament which binds 
together the different nations of the globe {tT). Without 
this, war would be, as has been sometimes asserted, the 
perpetual destiny of mankind, and that miserable fiction of 
shallow declamation and specious sophistry would be reality 
and truth. 

CXXXVII. It remains only to add a proposition which 
is indeed a corollary from the foregoing statements. If a 
nation be divided into various distinct societies, the obliga- 
tions which had accrued to the whole, before the division, 
ore, unless they have been the subject of a special agreement, 
rateably binding upon the different parts (r): “Contra 


term et des plaidrs de la vie, dans In mesnre de leur besoiu et do leur 
force qui font lent droit” — Ik la Dimocratie m I^mice, par M. Guizot, 

pp. 68-60. 

{h) Vide ante, ch. vii. p. 62. 

(c) “ Item foedera pacis et indociarum possunt sub hoc espite collocari, 
non quaterm servanda sunt poetqmm sunt facta ; hoc enim potius pertinet 
ad jus naturale.” — Suarez de Legdme et Beo Legislatore, p. 10!). 

(.<Q ‘*Je ne erdis pas” (says Abbd hlably) “qu'il soit ndeessaire de 
parler dons cet ouvrage do la fiddlitd scnipuleuse avec loquelle les Etata 
doivent templir learaengagemons; jo ne fais pas ici uu tnutd de droit 
naturel. D’ailleurs quo pourrois-jo ajouter & ce que taut do snvans 
hommes out 4crit but cette mati^re P Ezdeuter cos promesses, e'est le 
bien de la socidtd gdndrale, e’est la base de tout le bonheur de chaque 
socidtd particulidie ; tout nous le prouve, tout nous le ddmontre, cette 
vdritddont de mauvais raisoimeura veulent douter est eonnue dos peoples, 
le moins poikids; et les princes malheureux, qui so font un jeu de leura 
sermens, feignent de la respecter, si leur ambition n'est pas stupide on 
brutele,”— Tome i. p. 111. 

(«) " Dess nbrigens die Acten der Staatsgewalt eines frdhem Ilemchers, 
welche der Yetfassung des regierten Staatos entsprechen, auch fur den 
Nachfolger vertnudlich dnd, hann gewiss nach intemationolem Recht in 



212 


INTERNATIONAL LAW. 


“ evenit ” (as Grotius expresses himself) “ut qussuna civitas 
fuerat, dividatur, aut consensu mutuo, aut vi bellica, sicut 
corpus imperii Persici divisum est in Alexandri successores. 
“ Quod cum fit, plura pro uno existunt summa imperia, cum 
*^suo jure in partes singulas. Si quid autem commune 
** fuerit, id aut communiter est administrandum, aut pro 
“ ratis portionibus divideudum ” {/). And so ” (says Mr. 
Chancellor Kent) “ if a State should be divided in respect 
to territory, its rights and obligations are not impaired; 
and if they have not been apportioned by special agree- 
“ ment, those rights are to be enjoyed, and those obligations 
** fulfilled, by all the parts in common ” (g). So Mr. Justice 
Story, delivering a judgment in the Supreme Court of the 
United States, observed : “ It has been asserted as a principle 
‘‘ of the common law, that the division of an empire creates 
“ no forfeiture of previously vested rights of property ; and 
“ this principle is equally consonant with the common sense 
“ of mankind, and the maxims of eternal justice ” (A). Lastly, 
it should be observed, that this principle is in viridi obser- 
vantia in International practice, and was incorporated into 
the treaty by which the modem kingdom of Belgium was 
established (<). 


keineo Zweifel gezogen werden.” — Hegtm, s. 67, p. Ill ; Zacharui, 
Staats- und Bundesrecht, s. 68. 

(/) Grotiui, 1. ii. c. ix. b. 10. 

(ff) Kent's Commentaries, vol. i. p. 25. 

(A) Ten'ett and Others v. Tayhr and Others, 9 Vranch {Atnenemt) 
Keports, GO •, citing Kelly v. Harrism, 2 John, c. 20; Jackson v. Zutm, 
6 John. c. 109 (American ) ; Ctdviris Case, 7 Co. 27. 

(i) Wheatoris Hist, 640. 




PART THE THIRD. 


CHAPTER I. 

OBJECTS OP INTERNATIONAL LAW. 

CXX XVIII. The Sources and the Subjects of Inter- 
national Law having been stated, it remains to consider the 
Objects of this system of jurisprudence ; that is, the Eights 
which are to be ascertained, protected, and enforced by this 
law (a). 

CXXXIX. These rights flow as moral and logical conse- 
quences from the positions laid down in the flrst chapter 
with regard to the Individuality and Intercommunion of 
States, and from the definition of a State in the second 
chapter. Some of these rights concern more immediately 
the internal and domestic, others the external and foreign, 
condition of a State. Moreover, the rights of nations, like 
the rights of individuals, admit of a general division into 
rights which relate to persons, to things, and to the mode of 
their enforcement. 

CXL. These are rights properly so called — rights stricH 
juris ; but the constant intercourse and increasing civiliza- 
tion of nations has given rise to a usage and practice which 
greatly mitigates the severity with which these rights, 

(a) "Jus gentiom est sedium occupslio, sedificalio, munifio, bella, 
captivitetes, servitutes, postliminia, foedera, paces, induciso, legatorum 
aon ^olandoTom leli^, connulna inter alien^enas proldhita. ■ Hoc 
inde jus gentiiunappellatur, quia eojure omnes fere gentes utuntur." — 
i. Dirt. 



214 


INTERNATIONAL LAW. 


abstractedly considered, might be exercised, both with respect 
to the foreign community, in its aggregate capacity, and 
with respect to the persons of the indivulual members be- 
longing to it. This usage is called comitas gentium — ^thc 
comity of nations — droit de cotivenance. 

CXLI. With regard to the intercourse of individual 
members of different States, this Comitt has been suffered 
to grow up into what may be termed a, jus gentium privatum ; 
and which requires, on account of its magnitude and import- 
ance, a separate and distinct notice in another part of this 
work. 

CXLI I. With regard to a State in its aggreg<Ue capacity, 
questions of Comity, being much fewer in kind, and rarer 
in occurrence, may be conveniently mentioned and distin- 
guished in the general treatment of rights properly so called. 

CXLIII. But Avith regard to both, the fundamental dis- 
tinction between the usage of comity and the right stricti 
juris must never be forgotten (A). 

(A) ''Non minus sollicite sepnraviiuus ea qnse juris sunt, stricte ac 
proprio dicii, unde restitutionis oMigatio oritur, et ea qum jims esao 
dicuntur, quia aliter agore cum alio idiquu recta) rationis diclatopugnal.” 
— Grot. Ti'dey. s. 41, 

In the case of the dfum, Lord StowM observes (speaking of Art. 12 
of the Order of Council, 1664, which directs, “That when any ship, 
met withal by the Iloyal Nuaj or other ship commissionated, shall 
fight or make resist, the said ship and goods sliall be adjudged lawful 
prize ”) : “lam aware that in those orders and proclamations are to be 
found some articles not very consi.stent with the law of nations as under- 
stood now, or indeed at that time, for they are expressly censured 
by Ijord (tarendm. But the article I refer to is not of those he 
reprehends ; and it is observable that Sir JRabert Wiseman, then the 
King’s Advocate-General, who reported upon the Articles in 1676| 
and expresses a disapprobation of some of them as harsh and uovel, 
does not mark this article with any observation of censure. 1 am 
therefore warranted in saying that it was the rule, and the undisputed 
rule, of the British Admiralty. 1 will not say that that rule may not 
have been broken in upon in some instances by censideratims of comity 
or of policy, by which it may bo fit that the administration of this 
species of law should be tempered in the hands of those tribunal 
which have a right to entertain and apply them ; for no man can deny, 
that a State may recede from its extreme rights, and that its supreme 



OBJECTS OF INTERNATIONAL LAW. 


215 


The violation of rights stricti juris may be redressed by 
forcible means, by the operation of war, which in the com- 
munity of nations answers to the act of the Judicial and 
Executive Power in the community of individuals. But 
the departure from the usage of Comity cannot be legally 
redressed by such means. The remedy, where expostulation 
has failed, must be a corresponding reciprocity of practice 
on the part of the nations whose subjects are so treated. 

Illud quoque sciendum est,” observes Grotius ; “ si quis 
“ quid debet, non ex justitia propria, sed ex virtute alia, 
puta liberalitate, gratia, misericordia, dilectionc, id sicut 
“in foro exigi non potest, ita nec arrais deposci”(c). It 
is, however, often a question of some nicety and difficulty to 
ascertain to which class an asserted claim belongs, because 
the usage which had its origin in the precarious concession 
of Comity may be, and in many instances has been, trans- 
ferred, through uninterrupted exercise and the lapse of time, 
into the certain domain of Bight. 

councils are aathotized to doiermino in what oases it may ho fit to do so, 
the parUcuIar captor having in no case any other right and title than 
what the State itself would possess under the same facts of capture.”-^ 
1 a m. Adm. Eep. 367, 808. 

And again, further on in the same case, he says: “ It is lastly said, 
that they have proceeded only against the merchant vessels, and not 
against the frigate, the principal wrong-doer. On what grounds this 
was done— whether on that sort of cmity and respect which is not 
nnusually shown to the immediate property of great and august Sove- 
reigns, or how otherwise, I am again not judicially informed ; but it cun 
ho no legal bar to the right of a plaintiff to proceed, that he has for some 
reason or other declined to proceed against another party, against whom 
ho had an equal or possibly a superior title,”— 2A p. 376. 

hmoxiai utUitatis, quse, si primam illorum originem spec- 
tavoris, sunt tn^mfecta, per ea, qum account, antem m perfecta mutari 
atque tranare possunt; paullo difficilior est disquisitio.”— lie Necmitate 
et Vm Juris (fentium Dissertatio, c. ii. s. 17. — Festel. 

See the part of this work which relates to Comity for distinction 
hetwe^ Jus Gentium and Jus inter Genies. 

(c) Grditts, L it c. xxu. a. 16. 



S516 


INTERNATIONAL LAW. 


CHAPTER II. 

BIGHTS OP INDEPENDENCE AND EQUALITY. 

CXLIV. Some of the Rights of nations appear to flow 
more directly from the first, and some more directly from 
the second of those propositions which have been laid down 
as together constituting the basis of International Law {a). 

CXLV. From the first proposition — namely, that States 
are recognized as free moral persons — seem to be more 
especially derived the Rights incident to Independence, 
which are the following : — 

1. The right to a Free Choice, Settlement, and Altera- 
tion of the Internal Constitution and Government without 
the intermeddling of any foreign State. 

2. The right to Territorial Inviolability, and the free use 
and enjoyment of Property. 

3. The tight of Self-preservation, and this by the defence 
which prevents as well as by that which repels attack. 

4. The right to a free development of national resources 
by Commerce. 

5. The right of Acquisition, whether original or deriva- 
tive, both of Territorial Possessions and of Rights. 

6. The right to absolute and uncontrolled Jurisdiction 
over all persons and things mtkin, and in certain exceptional 
cases without i the limits of the territory. Under this head 
may be considered the status of Christians in Mohammedan 
or Infidel countries, not being subjects of those countries, 
and the question of Extradition of crimmals. 

(fl) Vide ante, ch. iii. 

Kadtendiom, Kap. y. s, 9 ; “ Venueb. rinerwissensciiaMichenSysteinatik 

des Volkeireclifs.’’ 



bights of independence and equalitt. 217 

CXLVI. The limitations which the abstract Bights of 
one nation may receive in their practical exercise from the 
existence of similar Bights in another nation, will be con* 
gidered in a chapter on the doctrine of Intervention. 

CXLVII. From the second proposition — namely, that 
each State is a member of an Universal Community — seem 
to be more especially dervived the Bights incident to 
Equality, which are the following : — 

1. The Bight of a State to afford protection to her law- 
fnl subjects wheresoever commorant ; and under this head 
may be considered the question of debts due from the Govern- 
ment of a State to the subjects of another State. 

2. The Bight to the Becognition by Foreign States of 
the National Government. 

3. The right to External marks of Honour and Bespect 

4. The Bight of entering into International Covenants or 
Tredties with Foreign States. 



218 


INTEHNATIONAL LAW. 


CHAPTER III. 

EIGHT TO A FREE CHOICE OF GOVERNMENT. 

CXL VIII. I. — W E will now consider the rights which 
flow as necessary consequences from the Independence of 
States. 

And first in the rank of internal and domestic rights is, 
the liberty incident to every Independent State, of adojit- 
ing whatever form of government, whatever political and 
civil institutions, and whatever rulers she may please, 
without the interference or control of any foreign Power. 
This elementary proposition of International Law is so un- 
questionable that it would be superfluous to cite authorities 
in support of it (a). 

CXLIX. This proposition, nevertheless, however true anil 
however important, generally speaking, is not without some 
limitations in its practical application; because, rights on 
the part of other States, members of tlie same system, may 
control, to a certain extent, the right of unlimited liberty 
generally incident to a State in the establishment of its 

(a) It is nowhere more fiuthfully enunmted than in Qvmiher^ i. 284, 
SB. 6, 7 : Keine Nation ist hefugt, sich in die Handlungen der audern 
2 U mischen, am toeniffstm in die innere Stoatsverfaesung.” The prin- 
ciple is recorded in many treaties; e.ff. Treaty of the Pyrenee*, 1659 
(Art. 60— France promises not to interfere in the afiyrs of Portugal) ; 
Peace of Liibeck, 1620 (Arts. 2, 3 — ^the Emperor of Germany tahes a 
omUar engagement as to Denmark — a reciprocal one being taken by 
Denmark) ; Peace of Nautadt, 1721 (Art. 7— Bussia makes a like 
promise with respect to Sweden). Most of the great European Powon 
have, on various occasions, formally, at least, promulgated the same 
doctrine. Vidt pod, iNxssvximoN— B aiancx of Powxb. 



bight to a fkee choice of goveekment. 219 

government, as the right of an individual in society to 
perfect liberty is, to a certain extent, limited by a similar 
right in his neighbour. The limitation of which this right 
is susceptible will be discussed hereafter in the chapter on 
Intervention. 



220 


1NT£BXAT10NAL LAW. 


CHAPTER IV. 

TEBniTORIAL INVIOLABILITY— NATIONAL POSSESSIONS. 

CL. II. — A State, like an Individual, is capable of 
possessing property. The property of a State is marked by 
the same characteristics relatively to other States, as the 
property of Individuals relatively to other Individuals ; that 
is to say, it is exclusive of all foreign interference and 
susceptible of free disposition (a). 

This property consists of Things {corpora), and of Rights 
to things (Jura ) ; or, in other wor^, it consists of things 
divided into those which are corporeal or incorporeal, movable 
or immovable (res, bona, pecunia) (b). As in the case of Indi- 
viduals, certain things belong by their nature so equally to 
every person, that they are incapable of being appropriated 
by any one person ; so in the case of States, certain things 


(a) Heffters, s. 64. 

(h) “Cum puj^us a tutore stipulatur rem salvam fore, non solum 
qnsB in patrimonio habet, sed etiam qum in noniinibns sunt, ea stipula- 
tione videntur contineri.” — Dig. lib. xlvi. t, vi. 9. 

“In bonis autem nostris computari sdendum est non solum qnte 
dominii nostri sunt, et si bona fide a nolns posmdeantur vel suporficiaris 
sint. iSque bonis adnumeralutur, efiam » qmd est in actionibus, 
petitionibus, peisecutionibus: nam hmc omnia in lionM esse vidontur.”— 
Ib. lib. 1. 1. xvi. 49. 

**Pee»mcs verbum non solum numeratam pecuniam complectitnr: 
verum omnem omnino pecuniam, hoc est omnia corporal Tmm corpora 
quoquo pecuniffi appellatione contineri nemo est qui ambiget.”— 
178. 

** Pcemite nomine non solum' numerata pecunia; sed omnesres, tam 
mU quam molnles, et torn corpora qwmpura continentur.’* — lb, 222. 



TEKIllTORIAL INVIOLABILITY. 


221 


belong so equally to all communities, as to be incapable 
of being appropriated by any one of them {extra commer- 
cium — extra patrimonium). 

All these Things and Rights taken together would be 
designated by the Roman law ** universitas ” (c). At present 
we are concerned only with that portion of this collective 
whole which relates to real or territorial rights, and more 
especially with the right which flows from the above- 
mentioned characteristic of exclusiveness — namely, the 
Right of Territorial Inviolability. 

CLI. A State in the lawful possession of a territory 
has an exclusive right of property therein, and no stranger 
can be entitled, without her permission, to enter within 
her boundaries, much less to interfere with her full exer- 
cise of all the rights incident to that supreme dominion, 
which has obtained from jurists the appellation of dominium 
eminens. 

CLII. Ro individual proprietor can alienate his posses- 
sions from the State to which they belong, and confer the 
property of, or the sovereignty over, tliem to another 
country (d). Whether and to what extent it may be com- 
petent to the sovereign of a territory to alienate any portion 
of it will be hereafter considered. 

CLIII. This general principle of dommium eminens is 
applicable to all possessions, whether acquired, 1, by recent 
acquisition, through the medium of discovery and lawful 
occupation ; 2, by lawful cession or alienation ; 3, by con- 
quest in time of war, duly ratified by treaty ; or, 4, by 
prescription. 

CLIY. National Territory consists of water as well as 
land ; and, in order to examine carefully the former species 
of possession, we must consider whether, and to what extent, 

(c) **B(monm appellatio, dcut hinroditatis, universitatem quandatn ac 
jus succeasionis, et non singulos los demonstiat.”— D m. lib. L t. xri. 
208. . 

: (d) Be Oarden, Traki de Biphmatie, t. i. p. 887. 



222 


INTERNATIONAL LAW. 


and under what limitations, the following waters may be 
the objects of national property and dominion : — 

1. Hi vers and Lakes. 

2. The Open Sea. 

3. The Narrow Seas. 

4. The British Seas. 

5. The Straits. 

6. Portions of the Sea. 



RIVERS. 


223 


CHAPTER V. 

PROPERTY OF A STATE — RIVERS. 

CLV. No difHcttlty can arise with respect to Rivers and 
Lakes entirely enclosed within the limits of a State ; bat 
questions of some difficulty have arisen with respect to rivers 
which are not so enclosed, bnt which flow through more 
than one State (a). The Roman law declared all navigable 
rivers to be so far public property that a free passage over 
them was open to everybody, and the use of their banks 
(Jus littoris) for anchoring vessels, lading and unlading cargo, 
and acts of the like kind, to be incapable of restriction by 
any right of private domain (&). 

CLVI. Tlie navigable rivers, however, were classed, ac- 
cordmg to that law, among the ** res publica” and not, as 
might appear from a superficial view, among the “ res 
communes,” as the sea was. Rivers were the public pro- 
perty of the State, not common to the whole world, like the 
ocean (c). 

CLYII. It has been contended, that the principle of this 
law has been engrafted upon International Law, and that 
it is a maxim of that law that the ocean is free to all 
mankind, and rivers to all riparian inhabitants. So that 
the nation which possessed both banks of a river where it 
disembogued itself into the sea, was not at liberty to refuse 
the nation or nations which possessed the banks of the river 

(«) Qmtiutf 1. ii. c. ii. as. 12-14, p. 191 ; c. iii. ss. 7-12, p. 207, 

(i) Ina, 1. ii. tdt. i. sa. 1-5 ; Dig, 1. i. tit viii. a. 5. 

(c) “Qusedam enim natoiali jure communia aunt omnium, quoedam 
publica. . . . £t quideurnaturali jure commmia aunt omnia hssc: Aer, 
-^qua profluens, et Mare, et per hoc littora maria. . . . Flumina autenx 
oumia, et Portua, puhUca aunt” — Insl, 1. ii. tit. i, as. 1, 2. 


224 


IXTEBNATIONAL LAW. 


higher up, from the use of the water, for the passage of 
vessels to the sea, and from the incidental use of the banks 
for the purposes mentioned above (d). The opinion of 
Grotius (e) seems to be in favour of this position ; for he held 
that, though the property and domain over the stream be- 
longed to the riparian States, ** at idem fiumen qua aqua 
^^profluens vocatur, commune mansit”(/); and this upon 
two grounds : 1. Because this was one of the rights excepted 
and reserved, at the period when the right of property was 
introduced as a limitation upon the original community of 
possession, in which fiction this great man believed ; but as 
the basis of this opinion clearly was and is now universally 
acknowledged to be a fiction, this reason, built upon the 
supposition of its being a truth, can be of no avail (ff). 2. 
Because the use of rivers belonged to the class of things 
utilitatis innoxia ^ (h), the value of the stream being in no 
way whatever diminished to the proprietors by this innocent 
use of them by others, inasmuch as the use of them is inex- 
haustible ({). Grotius, as it will be necessary to remark 
hereafter, appears to have considered the right of mere pas- 
sage (jus transitus innoxii) by one nation over the domain 
of another — whether that domain was an arm of the sea, or 
lake, or river, or even the land— to be one of strict IntOy and 
not of comUy ; but his opinion is not founded upon any 
sound or satisfactory reason, and is at variance with that of 
almost all other jurists (j). For, the reason of the thing 
and the opinion of other jurists, speaking generally, seem to 

(d) WheatmCs History of the Law tf Nations, p. 602, 

(«) Lib. ii. c. ii. 8. 12 et seq, p. 101. 

Vattd, 1. L c. X. 88. 10(% 104 ; 1. i. c. xxiii. s. 292. 

(jy) So Vattd, t. i. 1. ii. c. ix. 8. 123 : ** — on reste de la communion 
primitive.” 

(A) Qrotim, 1. ii. c. ii. 8. 11. 

(t) Vflttd, t. L L ii. c. ix. s. 126 : ** Bob choBcs d’un usage in^poisable.” 
G) Mondmar Engine Ortdan, however, a modem French author, who 
writes with care, good sense, and perspicuity, agrees with Orotm. See 
Hes Moyens d^aequirir le Domaine iatematimal ou Propridi dtEtd 
eatre les Nations, etc. p, 30 (Paris, 1861). 



RIVERS. 


22a 


agree in holding that the right can only be what is called 
(however improperly) by Vattel and other writers imperfect, 
and that the State, through whose domain the passage is to 
be made, must be the sole judge as to whether it be inno- 
cent or injurious in its character {k). 

CL VI II. It may be conceded, however, that the right to 
the free navigation of a river being once granted, the inno- 
cent use of the different waters which unite tliat river with 
the sea follows as a matter of course, and by necessary 
implication. This proposition was stoutly maintained by 
the States who were interested in the free navigation of the 
Rhine, and who insisted that no other construction could be 
put upon the expressions in the Treaties of Paris and Vienna, 
declaring that river to be free. “ Du point ob il devient 
“ navigable jusqu’a la mer ”(/), Avhich expressions included, 
not only the course of the Rhine Proper, which lost itself in 
the sands, but the other channels through which this river 
disembogued itself into the 8ca(m). 

CLIX. And it may also be admitted, that when this 
right of free navigation has been conceded, the maxim of 
Roman jurisprudence applies, and that the right of the shores 
is incident to tlie use of the water. Mr. Wheaton remarks, 
in his valuable “ History of the Law of Nations,” that the 
laws of every country probably intended the same provision; 
and he adds a remarkable instance of the practical application 
of the principle in the following precedent of International 
Law ; — “ This ” (he says) must have been so understood 
“ between France and Great Britain at the Treaty of Paris, 
“ when aright was ceded to British subjects to navigate the 
■‘whole river (the Mississippi), and expressly that part 
“ between the island of New Orleans and the western bank. 


(^) t^uffendorf, L iii. c. iii. s. 8. WAeaton's JElem, of Intemaiional 
vol, i. pp. 229, 230. Sittory of the Law of Nations, pp. 608-610. 
^ffendorf, 1 . JH. c. iii. ss. 3-6. Wdrs Inst. 8s. 310-312. Vattd, 1. i. s. 
2^2 ; Iii. 88. 123-130. 

(0 -Dc Mesrtms et de Gussy, Rec. de Tr. t. iii. p. 179. 

(»») Amual Reyiaerfor 1826, pp. 269-263. 

VOL. I. Q 



226 


INTERNATIONAL LAW. 


** without stipulatiug a word about the use of the shores, 
though both of them belonged then to France, and were 
“ to belong immediately to Spain. Had not the use of the 
" shores been considered as incident to that of the water, it 
“ would have been expressly stipulated, since its necessity 
“ was too obvious to have escaped either party. Accord- 
“ ingly, all British subjects used the shores habitually for 
“ the purposes necessary to the navigation of the river ; and 
“ when a Si)anish governor undertook at one time to forbid 
“ this, and even cut loose the vessels fastened to the shores, 
“ a British vessel went immediately, moored itself opposite 
“ the town of New Orleans, and set out guards with orders 
“to fire on such as might disturb her moorings. The 
“ governor acquiesced, the right was constantly exercised 
“ afterwards, and no interruption was offered ” (w). 

CLX. These accessories, however, can of course only 
be demanded when the principal right has been granted ; 
and wc must return to the position, that where tlie free 
navigation of a river has not been conceded by the State 
possessing both banks, there is no sufficient authority for 
maintaining that such concession can be, irrespectively of 
treaty, lawfully compelled. It is true, indeed, that the 
United States of America, in their controversy with Spain 
with reference to the navigation of the Mississippi, before 
the Treaty of Lorenzo el Beal in 1795, insisted upon a strict 
International right, founded, as it was alleged, upon the 
natural sentiments of man, to the free use of rivers from the 
source to the mouth by all riparian inhabitants. But the 
practice of nations was not at that time in favour of this 
position, and a treaty was finally resorted to in this, as it has 
been since in other cases, as the only certain means of placing 
this claim upon the footing of right, and of securely regu- 
lating its exercise. 

. CLXI. The general law on this head is summed up wth 
characteristic perspicuity by Lord Stowell in the case of the 


(») Hist, of the Law of Nutiom^ 610, 611. 



RIVERS. 


227 


Twee Gehroeders (o). This was a case of considerable 
importance^ as it respected the claim of a sovereign State 
to a right of territory over the spot where the capture in 
question was alleged to have taken place. The case arose 
on the capture of vessels in the Groningen Watt, on a 
suggestion that they were bound from Hamburg to Amster- 
dam) then under blockade, and a claim was given under 
the authority of the Prussian minister, averring the place in 
question to be within the territories of the King of Prussia. 
Lord Stowell said, “ It is scarcely necessary to observe, that 
“ a claim of territory is of a most sacred nature. Strictly 
“ speaking, the nature of the claim brought forward on this 
** occasion is against the general inclination of the law, for 
“ it is a claim of private and exclusive property, on a subject 
‘‘ where a general, or at least a common use is to be presumed. 
“ It is a claim which can only arise on portions of the sea, 
“ or on rivers flowing through diflerent States : the law of 
“ rivers flowing entirely through the provinces of one State 
“ is perfectly clear. In the sea, out of the reach of cartnon- 
“ shot, universal use is presumed ; in rivers flowing through 
‘‘ coutermiuous States, a common use of the different States 
“ is presumed. Yet, in both of these, there may, by legal 
“ possibility, exist a peculiar property excluding the universal 
"or the common use.. Portions of the sea are prescribed 
" for, so are rivers flowing through contiguous States ; the 
" banks on one side may have been first settled, by which 
" the possession and property may have been acquired, or 
" cessions may have taken place upon conquests, or other 
"events. But the general presumption certainly bears 
“ strongly against such exclusive rights, and the title is a 
"matter to be established, on the part of those claiming 
" under it, in the same manner as all other legal demands 
“ are to be substantiated, by clear and competent evidence. 
“ The usual manner of establishing such a claim is, either 
“ by the express recorded acknowledgment of the confer- 


{p^ 3 Ow j/tdith 338 ~ 340 » 



228 


INTEKNATIONAL LAW. 


minous States, or by an ancient exercise of executive 
‘^jurisdiction, founded presumptively on an admission of 
‘‘ prior settlement, or of subsequent cession. One hardly 
“sees a third species of evidence, unless it be, what this 
“ case professes to exhibit, the decision of some common 
“ superior in the case of a contested river. The sea admits 
“ of no common sovereign ; but it may happen that contcr- 
“ minous States, through which a river flows, may acknow- 
“ ledge a common paramount sovereign, who, in virtue of 
“ his political relation to them, may be qualified to appro- 
“ priate exclusively and authoritatively the rights of territory 
“ over such a river, to one or otlier of them.” 

CLXIl. This free namgaiion, and this innocent use of 
rivers, have formed an important part of many treaties; 
and tlie subject has been most carefully considered in some 
of the principal conventions of modern times. 

CLXlll. When the Seven United Provinces had obtained, 
after a struggle of eighty years’ duration, the recognition of 
their independence from the crown of Spain, they were not 
contented witli having achieved their own liberty, and with 
having possessed themselves of some of the richest colonics 
of their former sovereign in the Xew World : they strove, 
being far-sighted according to the notions of trade then preva- 
lent, to secure to themselves, both at home and abroad, the 
closest commercial monopoly (p); and by the peace of Munster 
(Jan. 30, 1648) thay actually compelled Philip the Fourth to 
deprive the Ten Provinces, Avhich had retained their allegiance, 
of the commercial advantages naturally incident to their geo- 
graphical situation. The fourteenth article of that Peace {q) 
contained a stipulation that the Scheldt in all its branches, 


(/>) Koch, HiHaire den Traitis de Pttu', tout. i. pp. 84, 483 (i^- 
BruxcUos, 1837). 

(y) Tho stipulation was said to he only a confirmation of tlic ancient 
right of Staple (iT^tapes) by which foreign vessels entering the Scheldt 
were compelled to break bulk, and put their cargo on board Dutch 
vessels ; but by this stipulation foreign vessels were absolutely prohibited 
from euteruig the Scheldt. 




UIVEBS. 


229 


and in its mouths of Sas, Zwyn (r), and the other openings 
into the sea, should be for ever closed to the Belgian pro- 
vinces. This stipulation, to which the ruin of the once 
magnificent commerce of Antwerj) has been ascribed, was 
rigidly enforced till 1783 («), when Joseph the Second 
endeavoured to remove the unnatural obstacles to the natural 
prosperity of his fine Belgic provinces, by forcing, most 
illegally it must be confessed, the opening of the Scheldt. 
But the Dutch made on the whole a successful resistance to 
this attempt, retaining, by the Treaty of Fontainebleau 
(which they concluded, under the mediation of France, with. 
Joseph in 1785), the Scheldt from Saftingen to the sea, and 
all the mouths of the Scheldt in the same closed condition, in 
which they had been placed by the Treaty of Munster. • The 
forcible opening of this navigation by the French when they 
overran Belgium in 1792, and the utter disregard which 
they avowed for all treaties upon the matter, was one of the 
circumstances which brought England and Holland into the 
war against France. 

CLXIV. The Treaty of Vienna in 181.5 introduced a 
more liberal principle upon this subject into the public law 
of Europe. The final act of the Congress of Vienna prov ided, 
by what is called the Annexe XVI., that the navigation of 
all rivers separating or traversing difterent States should be 
entirely free, from the point where each river became navi- 
g-ible to the point of its disemboguement into the sea (t). The 

(r) The Dutch, it should he observed, always maintained that the 
whole course of the two branches of the Scheldt, which, passed witbhi 
tho dominions of Holland, was entirely art^kitd] that it owed its 
existence to the skill and labour of Dutchmen; that its banka bad been 
erected and maintained by them at a great labour and expense. 

Oautes dRhres, t. ii. p. 203 — Cause huiti^me; 
DifliSrends survenus, en 1783 et 1784, entre rA.ntricho et la Bdpublique 
es Provinces unies des Pays-Bas, au sujet des limites de la blandre, de 
cession de Maestricht, de I’ouverture de I’Escaut, et du commerce aux 
indea Orientales.” 

vol. i. p. 2. — “Art OVIII. Les puissances dont les 
sW *4par& on traverads par nne mdme rivihre navigable, 
™R®^nt h rdgler d*un common accord tout ce qm a rapport & la 
iga ion de cette livihre. Elies nonuneront, ft cet effet, dee com- 


230 


INTERNATIONAL LAW. 


general principles of this act of regulation {reghmeni) were 
founded upon a memoir of the celebrated Wilhelm von 

missaires, qui ee r<5uiuroTit, an plus tard^ six mois apr5s la iin du 
Oon"r58, et qui preiidront pour bases de leurs travaux les principes 
^taUis dniis les articles suivants. 

**Art. OIX. navigation dans tout le cours des rivi^s indiqu^es 
dans Tarticle pr^^cddeut, du point oii chacune d^elles devient navigable 
jusqu’a son embouchure, sera entiorement libre, et ne pourra, sous lo 
rapport du commerce, etra interdite & personne ; bieu entendu que I’on 
se conformera aux rfeglements relatil’s & la police de cotte navigation 
lesqiiels semnt coii^us d'une maniere unilbrnie pour tons, et auasi favo]>- 
able quo possible au commerce de toutes les nations. 

“Art. OX. Le systeme qui sera 6tabli, tant pour la perception doa 
droits que pour le inaintien do la police, sera, aulant quo faire sc ponrra, 
le memo pour tout le cours de la riviere, et s’^tendra aussi, & moins que 
lea circonstances parliculieres ne s’y opposent, siir ceiix de sea enibranchc- 
Tuents et confluents qui, dans lour corns navigable, sdparent ou traversent 
diflUSrents dtats. 

“Art. CXI. Les droits sur la navigation seront fix(Ss d’une mamem 
uiiiforme, invariable, et assez inddpendanio de la qualit($ diflifvento des 
marcliandises pour ne pas rendre ndeessaire un examen ddtaille de la 
cargaison, autromeiit que pour cause do fraude ei de contravention. 
La quotitti de ces droits, qui, en aucim cas, ne pourront oxedder coux 
existaiit actuel lemon t, sera ddlormin^e d’apres les circonstances locales, 
qui ne permottent gu6res dbtablir une regie g^n^rale cet ^gard. On 
partira n<5anmoins, en dressant le tarif, dii point de vuo d enc(niragor lo 
commerce en lacilitant la navigation, et Foctroi dtabli sur le Rbin poinra 
servir d’une nomie approximative. 

“ Lo tarif une foia rdgl^, il ne ponrra plus ctre augments quo par un 
arrangement commun des dtats riverains, ni la navigation grov^e d’autrea 
droits quclcoiiques, outre ceux fixds dans le rfegleinont. 

“ Art. OXII, Les bureaux de perception, dout on r<3duiTa autant quo 
possible le noiubre, seront fixds par lo regleinent, et il ne pourra s’y faire 
ensLiite aueiin changement que d’uii commim accord, moins qinin des 
dtats riverains ne voulut diminuer le nombre de ceux qui lui appariieu- 
nent' exclusi vemout. 

“Art. OXIII. Cbaque ^tat riverain se chargera de I’entretien des 
cbemins de faallage qui passent par son territoire, et des travaux ii^ces- 
saires pour la raenio ^Jendue dans le lit de la riviere, pom* ne faire 
(fprouver aucun obstacle h la navigation. 

“ Lo reglement fiitur fixora la maniere dont les ^tate riverains dovront 
concourir a ces demiers travaux, dans lo cas ou les deux rives appar- 
tiennent i\ diflerents gouvomements. 

“ Art. OXIV. On tfdtablira nulle part des droits dbtape, d’ficbelle, ou 
de relftche foTc6e. Quant h ceux qui existent d^ji, ils ne seront conserves 
qii’en tant que les t$tats riverains, sans avoir dgard k TinWret local de 


Ill VEEP. '■ 


231 


Humboldt (m), then the Prussian plenipotentiary , they were 
afterwards applied, by a series of articles, to the details of 
the tolls (x), octroi, police, and other matters incident to the 
navigation of rivers, and in particular to the Rhine, the 
Neckar, the Main, the Moselle, the Meuse, the Scheldt ; the 
stipulations relating to the Meuse and the Scheldt were 
subsequently incorporated into the treaty of 1839, between 
the then independent kingdoms of Holland and Belgium. 

Tendroit ou dii pays ou ils sent ^tablis, les trouveraient n^cessaires ou 
utiles » la navigation et au commerce on general. 

“Art. OXV. Les douanes des dtats riverains n’auront rieu de coramiiu 
avec les droits do navigation. On emiiecliora, par des dispositions r6gle- 
mentaires, qne Texerdee des fonctions des douauiers ne mette pas 
d’entravos a la navigation ; mais on surveillera, par une police exacle 
BUT la rive^ toute tentative des habitants de faire la contrebande h Vaide 
(les bateliers. 

“Art. OXVI. Tout ce qui eat indiqud dans los articles prdeddents sera 
d^termind par im rdglement comniun qiii renferraera dgalement tout ce 
qui aurait besoin d etre fixd iiltdrieurcment, Le r&glement, une fois 
arretdi ne potirra etre changd qua du consentoment de tons les dtats 
riverains, et ils aurout soin do pourvoir & son exdcutioii d’une maniere 
coiivenable, et adaptde aux circoiistaiices et aux localitds. 

“Art, OXVIL Lesrdglemens particuliers relatifs a la navigation du 
Rhin, du Neckar, du Mein, de la Moselle, de la Meuse et de TEscaut, tels 
qu'ils se trouvent joints au present acte, auront la meme force et valeiir 
qiie s’ils y avaient 6t6 textuollement insdrds.” 

(tt) meaton's History j p. 498. 

(.r) Qrotim^ 1, ii. c. ii. xiv., observes generally upon the question 
of tolls : “ Sed qumritur, an ita transeuntibns mercibus, terra, aut amne, 
ant pai’te mans, qum tenm accessio dici possit, vectigalia imponi possint 
ab eo, qui in terra imperiuni habet, Certo qiuecnnqiie onera ad illas 
merces nullum babent rospectum, ea mercibus istis imponi milla aequitas 
patitur. ISic nec capitatio, civibus imposita ad snstentanda reipublicae 
onera, ab exteris transeuntibus oxigi |)oteat. Sed si aut ad praestandam 
securilatem mercibus, aut inter caotera, etiam ob hoc onera suslinentur, 
«d ea cc»mpensanda vcctigal aliquod imponi mercibus potest, diiin 
modus causae non excedatur,” Upon this passage Bmieyrac remarks : 
“ Cette mson et autres semblables no font que rendre plus juste la levde 
des impots. Mais inddpendammeut de tout cela on pent exiger quelque 
chose ^ur la rimjjie pennimmi de passer ^ qu’on n’dtoit pas obligd d’accorder 
a la rigueur. II est libre h tout propridtaire, par une suite du droit 
pwpridtaire, de n’accorder ik autre que, moyennant jun certain 
Ftt, 1 usage do eon bien.” See also Vaitel, 1. i. c. x. pp. 103, 104, 128 j 

c.x.p.862. 



232 


TNTEilNATlONAL LAW. 


OLXV. Arrangements made in a similar spirit with 
respect to the free liaviga^n of the Vistula, entered into, in 
May. 1815, between Austria and Russia (y), and between 
Russia and Prussia, to which Austria subsequently acceded, 
and with respect to the rivers and canals of ancient Poland, 
were confirmed by the fourteenth article of the final diet^f 
this Congress. Similar regulations were established with 
respect to the navigation of the Elbe, by a convention signed 
at Dresden, on June 23, 1821, by the States bordering on 
that river {les Etats riverains), and by an additional act 
signed by the same parties at Dresden, on April 13, 1844 ; 
a similar act was entered into by the States bordering on 
the Weser on September 10, 18^ (z). By the ninety- 
sixth article of the same Congress, the same general prin- 
c^les with respect to the free navigation of rivers were 
•Ktended to the Po. 

CLXVI. By a Treaty {a) between Spain and Portugal, 
signed at Lisbon on August 13, 1835, the perfect freedom 
of navigation of the river Douro was secured to the subjects 
of both the contracting Powers. 

CLXVII. The Treaty of Bucharest in 1812 put an end 
to the hostilities which had been carried on between Russia 
and the Ottoman Empire since 1809. By the fourth article 
of that Treaty it was covenanted, that the boundary of 
Russia on the side of Turkey in Europe should be tlie 
Pruth, from the point where it joins the Danube, and the 
left bank of the Danube to its mouth into Kilia in the 
Black Sea ; that the navigation of both rivers, according to 
these limits, should be equally free — the latter only having 
been so before — to the subjects of both empires; that no 
fortifications should be erected on the island in it; and 
that the right of fishing and cutting wood should also be 


(y) Treaty between Austria and Russia as to the Dniester, March Wi 
1810. 

(a) Martens, Nmv. MecueU, tom. ix. p. 861. 

(fl) Mortem et de Cuesy, tom. iv. p. 123. 



KIVEHS— TilE DANUBE. 


233 


common to both countries (6). But by the Treaty of Paris, 
18.96 (c)j the navigation of the ^6ble and mighty Danube 
yfjts subjected to the same public law to which other great 
rivers of Europe flowing through the territories of divers 
States had been subjected by the Treaty of Vienna (fZ). The 
extension of the principle of free navigation to this great 
arteiy of Europe is a fact of n<» light importance to the 
present and future welfai-e of miinkind. By the Treaty of 
Adrianople (e) the Sulina channel of the Danube had been 
practically placed under the power of Russia. Much of the 
value of the navigation depends upon the state of this 
channel, about whieV great complaints* had been justly 
made (/). This evil al^ has been remedied by the Treaty 
of Paris (1856), which appointed an European commission, 
to examine and make regulations on the subject (</). 

CLXVIIa. The General Treaty (A) for the European^ 
and Riverain Commissioners of the Danube was concluded 
between Great Britain, Austria, France, Prussia, Russia, 
Sardinia, and Turkey, on March 30, 1856. 

This Treaty contained, among other provisions, the follow- 
ing Articles: — 

"Abt. XV. (Z). The Act of the Congress of Vienna 
“ having established the principles intended to regulate the 
“ navigation of rivera which separate or traverse diflTerent 
“ States, the contracting Powers stipulate among themselves 


(6) Wheoirn’e Hist. p. 504. 

(c) Arts, xv.-xix. 

(rf) “ Convention conclue le S56 (13) juillet, 1840, enlTo I’Autaiche et 
la liussie, conceruant la navigation du Danube.” — MaHenSf Itec, de 
Trmth, stc. vol. xxx. p. 209. 

(e) Art. 2, 1829. 

(/) Correspondence with the Russian Government respecting obstruc- 
tions to the navigation of the Sulina Channel of the Danube, in papers 
laid before Parliament, 1863. 

is) See a ri^emsmt jn’oruotre made on July 9, 1860. — Ree, gin, de 
TraiUt^ Srnnwer (cont. of Martens), t. iv. 2' partie, p. 118. 

(A) See Papers relating to the navigation of the Danube, laid before 
Parliament, March 1, 1878. They extend from 1856 to 1878. 

(♦") French version IMd before Parliament in 1866. * 



234 


IXTEKXATIONAL LAW. 


that those principles shall in future be equally applied to 
" the Danube and its mouths. They declare that this ar- 
“ rangement henceforth forms a part of the public law of 
“ Europe, and take it under their guarantee. 

" The navigation of the Danube cannot be subjected to 
“ any impediment or charge not expressly provided for by 
“the stipulations contained in the following Articles: in 
“ consequence, there shall not be levied any toll founded 
“ solely upon the fact of the navigation of the river, nor any 
“ duty upon the goods which may be on board of vessels. 
“ The regulations of police and of quarantine to be ostab- 
“ lished for the s:Aty of the States separated or traversed 
“ by that river shall be so framed as to facilitate, as much as 
“ jwssible, the passage of vessels. With the exception of 
such regulations, no obstacle whatever shall be opposed to 
“ free navigation. 

“ Akt. XVI. With the view to carry into effect the 
“ arrangements of the preceding article, a Commission, in 
“ which Great Britain, Austria, France, Prussia, Hussia, 
“ Siirdinia, and Turkey, shall each be represented by one 
“ Delegate, shall be charged to designate and to cause to 
“ be executed the works necessary below isakteha, to clear 
“ the mouths of the Danube, as well as the neighbouring 
“ parts of the sea, from the sands and other impediments 
which obstruct them, in order to put that part of the river 
“ and the said parts of the sea in the best possible state for 
“ navigation. 

“ In order to cover the expenses of such works, as’ well as 
“ of the establishments intended to secure and to facilitate 
“ the navigation at the mouths of the Danube, fixed duties 
“ of a suitable rate, settled by the Commission by a majority 
of votes, may be levied, on the express condition that, in 
“ this respect as in every other, the flags of all nations shall 
“ be treated on the footing of perfect equality.” 

There were various other Treaties, Conventions, and 
Conferences, which in the present state of circumstances, 
it is unnecessary to mention, but a Treaty between Great 



RIVERS — THE DANUBE. 


235 


Britain, Germany (Prussia), Austria, France, Italy, Rus- 
sia, and Turkey, for the revision of certain Stipulations 
of the Treaty of March 30, 1856, signed at London, 
March 13, 1871, contained the following among other 
provisions : — 

« Art. IV. The Commission established by Article XVI. 
“ of the Treaty of Paris, in which the Powers who joined 
“ in signing the Treaty are each represented by a Delegate, 
“ and which was charged with the designation and execution 
“ of the works necessary below isakteha, to clear the mouths 
“ of the Danube, as well as the neighbouring parts of the 
« Black Sea, from the sands and other llQ]>cdiments which 
“ obstruct them, in order to put tliat part of the river and 
“ the said parts of the sea in the best state for navigation, 
is maintaih^d in its present composition. The duration ol 
“ tliat Commission is fixed for a further period of twelve 
“years, counting from April 24, 1871, that is to say, till 
“ April 24, 1883, being the term of the redemption of the 
“ loan contracted by that Commission, under the guarantee 
“of Great Britain, Germany, Austria-Hungary, France, 
“ Italy, and Turkey. 

“ Art. V. The conditions of the re-assembling of the 
“ Riverain Commission, established by Article XVII, of the 
“ Treaty of Paris of March 30, 1856, shall be fixed by a 
“previous understanding between the Riverain Powers. 
“ without prejudice to the clause relative to the three Danu- 
“ bian Principalities ; and in so far as any modification of 
“ Article XVII. of the said Treaty may be involved, this 
“ latter shall form tlie subject of a special Convention be- 
‘ • tween the co-signatory Powers. 

“ Art. VI. As the Powers which possess the shores of 
“ that part of the Danube where the Cataracts and the Iron 
“ Gates offer impediments to navigation reserve to them- 
selves to come an understanding witli the view of removing 
those impe^ments, the high contracting parties recog- 
njze from the present moment their, right to levy a pro- 
visional tax on vessels of commerce of every flag which 



236 


INTKUNATIONAL LAW. 


** may henceforth benefit thereby, until the extinction of 
“ the debt contracted for the execution of the works ; and 
“ they declare Article XV. of the Treaty of Paris of 1856 
to be inapplicable to that part of the river for a space of 
“time necessary for the repayment of the debt in ques- 
“ tion. 

“ Art. VII. All the works and establishments of every 
“ kind created by the European Conunission in execution 
“ of the Treaty of Paris of 1856, or of the present Treaty, 
“shall continue to enjoy the same neutrality which has 
“ hitherto protected them, and which shall be equally rc- 
** spected for the ^future, under all circumstances, by the 
“ high contracting parties. The benefits of the immunities 
“ which result therefrom shall extend to the whole adminis- 
“ trative and engineering staff of the Commission. It is, 
“ however, well understood that the provisions of this Article 
shall in no way affect the right of the Sublime Porte to 
“ send, as heretofore, its vessels of war into the Danube in 
“ its character of territorial Power.’’ 

In 1875 a great number of regulations, in much detail, 
were agreed upon by the European Commission relating 
to the navigation and police of the Lower Danube, and 
the dues to be collected at the Sulina mouth; the Con- 
vention contained the following final provisions : — 

“ Art. CLI V. The present regulation will enter into force 
“on March 1, 1876. 

“ From the same day forward the regulation of navigation 
“and police, dated November 8, 1870, will cease to have 
“ force of law. 

“ Art. CLV. The present regulation may be modified, 
“ according to need, by the European Commission or by the 
“ International Authority which shall be substituted for it 
“ in virtue of Article XVII. of the Treaty of Paris. 

“Done at Galatz, the 10th day of November, 1875.’ 
(Duly signed.) 

CLXVIII. The expressions in the Treaties of Paris and 



RIVERS "THE RHINE. 


237 


Vienna, stipulating for the free navigation of the Bhino 
jusqu*^ la mer,” gave rise to a serious controversy between 
the Dutch Government and all the other Powers interested 
in tlie navigation of that river, except Baden and France ; 
they supported the interpretation put upon these words by 
the Dutch. “ To the sea,” they contended, in the first place, 
did not mean “ into the sea ; ” and, secondly, if the upper 
States were to insist so strictly upon words, then they must 
be contented with the course of the proper Bhine itself. 
The mass of water which forms the Rhine, dividing itself a 
little way above Nimeguen, is carried to the sea through 
three principal channels, the Waal, the Leek, and the Yssel : 
the first descending by Gorcum, where it changes its name 
for that of the Meuse; the second, farther to the north, 
approaching the sea at Rotterdam ; and the third, taking a 
northerly coui-se by Zutphen and Deventer to disgorge itself 
into the Zuyder Zee. None of these channels, however, 
is called or reckoned the Bhine ; that name is preserved to 
a small stream which leaves tlie Leek at Wyck, takes its 
course by Utrecht and Leyden, gradually losing its waters, 
and dwindling away so as to be unable to reach the sea, dis- 
appears among the downs in the neighbourhood of Kulwyck. 
The Bhine itself, strictly speaking, being thus useless for 
die purposes of sea-navigation, it had been agreed between 
Holland and her neighbours to consider the Leek as the 
continuation of the Bhine; and the Government of the 
Netherlands afterwards consented that the Waal, as being 
deeper and better adapted to navigation, should be sub- 
stituted for the Leek. Now the Waal, said the Government 
of Holland, terminates at Gorcum, to which the tide ascends ; 
there consequently ends the Bhine ; all that remains of that 
branch from Gorcum to Gravelingen, Helvoetsluys, and the 
niouth of the Meuse, is an arm of the sea, enclosed within 
our own territories, and therefore to be subjected to any 
juilwsts and regulations which we may think fit to establish, 
this interpretation, though supported, as has been reniarked, 
y £ ranee and Baden, was strenuously opposed by all the 



238 


INTERNATIOT^AL LAW. 


other Powers of Germany, who denounced it as an attempt 
to evade by chicane the plain meaning of the Treaty of Paris, 
Prussia addressed a memorial to the Great Powers who had 
been parties to the Treaty of Paris and the Congress of 
Vienna, calling upon them to state what had been the real 
meaning of that Treaty in regard to the navigation of the 
Rhine. The Allied Powers put upon the Treaty the same 
interpretation as the German States ; but the Government of 
the Netherlands having returned an unfavourable answer to 
their joint remonstrance, the Austrian envoy at Brussels 
presented a note to that Court, in February 1826, in which 
he argued, that, “ by the Treaty of Paris, the Allied Powere, 
“ in conjunction with France, agreed that the sovereignty of 
the House of Orange should receive an accession of ter- 
“ ritory, and that the navigation of the Rhine, from the 
point where it is navigable to the sea (jus(iu’a la nier), 
“ and vice versa, should be free. This last |)oint was further 
“ confirmed in the separate article, which provides * that the 
“ freedom of navigation in the Scheldt shall be established 
“ on the same principles as those on which the navigation of 
the Rhine is regulated by Article 5 of the present Treaty’ 
“ The Allied Powers further reserved to themselves to deter- 
“ mine, at the next Congress, the countries which should be 
“ united with Holland, and declared ‘ that then the principles 
“ should be discussed, upon which the tolls to be levied by 
the States on the banks might be regulated in the most 
“ uniform manner and most advantageously to the commerce 
" of all nations.’ It appeared, from the simultaneous issuing 
*‘of these two resolutions, that, among other conditions 
** which the allies annexed to the incorporation of Belgium, 
“ this increase of territory was combined on their side, even 
“ before the establishment of the kingdom of the Netherlands, 
with the above obligation to restore the freedom of the 
“navigation. There could certainly be no more express 
“ and positive obligation than that which is united with the 
“ foundation of a State, and which, in the present case, had 
“ been fully sanctioned by the accession of the King of the 



239 


BI VERS— THE RHINE. 

(( Netherlands to the Treaty of Paris, and the act of Congress 
at Vienna. It was inconceivable how the Government of 
tlie Netherlands could flatter itself with the hope of making 
a right obscure and doubtful, by prolix observations on the 
« main resolution, and to do away with the principle of the 
free navigation of the Bhine, which was proclaimed in the 
“face of the world in the first document of the political 
“ restoration of Europe, and on the same day when Holland 
“ was given "up to the House of Orange.” 

The Cabinet of Brussels replied by a repetition of the geo- 
graphical argument, that the Bhine, properly so called, did 
not reach the sea ; and by an assertion, that the Bepublic of 
Holland jiad never ceased to exist de jure, and had preserved 
its existence under a monarch de facto, before the act of the 
Congress of Vienna, and before the treaties which incor- 
porated with it the Catholic Netherlands. The outlets of 
the Bhine were certainly streams belonging to Holland, and 
to Holland only ; but the question was, whether the opening 
of these streams was not a part of the condition whereby 
Holland had gained the accession of the Belgic provinces, 
— whether they were not conferred and accepted on the 
understanding that the exclusive territorial right to the 
moutlis of the Rhine should be modified and limited for the 
future. The reply of the Dutch Cabinet does not seem to 
meet this objection ; and it must be confessed that, to con- 
tend that the Rhine Proper is lost in a little brook, while 
two-thirds of its mighty volume of water are flowing on 
through the Waal and receiving the tributary Meuse, is a 
proposition which, however geographically accurate, cannot 
be very agreeable to the plain common sense of mankind. 
All that could be gained, however, at this time was a con- 
cession that the Leek should be considered as the Rhine, and 
that German vessels should be allowed to navigate it unmo- 
lested under no higher duties than might be imposed on 
other parts of the river, and that the prohibitions against the 
transit of goods should be abolished. Still, however, the 
main question — tlirough what channel the Rhine **jusqu'ct 



240 


INTERNATIONAL LAW. 


“ la mer ” was to be navigated — remained in uncertainty; for 
the Leek ends at its junction with the Meuse before it 
reaches Rotterdam, and the Meuse was a river purely Belgic 
and Dutch (J). 

But by the Treaty (A) concluded at Mayence, March 31, 
1831, it was finally settled by all the riparian States of the 
Rhine, that this river should be free from the point where it 
is first uavigable into the sea itself (bis in die See\ and that 
the two outlets to the sea should be the Leek and the Waal 
— the passage through the Leek being by Rotterdam and 
Briel, and through the Waal by Dortrecht and Helvoetsluyg 
— with the use of the canal between the latter place and 
Voovre. Various and particular regulations were made by 
this Treaty concerning police and tolls ; and it was especially 
stipulated, that, if the aforesaid outlets to the sea should be 
dried up, the Government of the Netherlands, in whose 
dominions they were, should indicate other courses to the 
sea equal in convenience to those used for navigation by its 
own subjects. 

CLXIX. On no occasion were the principles of this 
branch of International Law more elaborately discussed than 
in the cases of the great American rivers, the Mississippi 
and the St. Lawrence. By the Peace of Paris and Huberts- 
burg in 1763, France ceded Canada, and Spain ceded Florida, 
to Great Britain. France lost by this Treaty all her pos- 
sessions in North America, Louisiana having been pre- 
viously ceded to Spain as an indemnity for Florida. The 
boundary line between the British and French jwssessionsin 
North America was drawn through the middle of the Missis- 
sippi, from its source to the Iberville, and through the Iber- 
ville and the lakes of Maurepos and Pontchartrain to the 
sea ; and the free navigation of the Mississippi was secured 

{j) Amud Beg. vol. Ixviii., year 1826, pp. 269-263. 

(4) ‘‘ OonTetitious eiitre les Qoavctnenients de« Etats riverains du Bliin, 
et r^glemeut relatif k la navigation du dit fleure, condus A Mayence 1e 
31 mars 1831, et dent los ratificationa ont 6t6 dchongdes rdciproqueiueut 
le 16 juin.’’ — Martens, Bee. de TrttUis, vol. xvii. p. 262. 



EIYTERS— THE MISSISSIPPI. 


24L 


to Britisli sabjccts ujion the groaud, which has since proved 
to be erroneous in point of fact, that the Mississippi took its 
rise in the British territory. Subsequently France ceded 
Louisiana to Spain, and to the same Power Great Britain, 
at the Treaty of Versailles in 1783, ‘'rfltroce^/cd” (to use 
the language of the Treaty) Florida. Spain thus became 
sovereign over both banks of the river fur a considerable 
distance above and at its mouth ; and on this fact she built 
her claim to an exclusive navigation of the river below the 
point of the soutliern boundary of the United States. 

The recognition of the independence of the United States 
was the object of the Treaty of 1783 ; and by the eighth 
Article it was provided that **the navigation of the river 
“ Mississippi shall for ever remain free and open to the 
“ subjects of Great Britain and the citizens of the United 
“ States.” The United States therefore resisted the claim of 
Spain, taking their stand upon these Articles in the Treaties 
of 1763 and 1783, and also upon the general principles of 
International Law. They insisted that by this law a river 
was open to all riparian inhabitants, and that the upper in> 
habitants of a river had a right to descend the stream, in 
order to find an outlet for their produce ; and, even if Spain 
possessed an exclusive dominion over tlie river between 
Florida and Louisiana, that an hinocent jmssnge over it was 
not the less on that account tlie right of the inhabitants of 
its upper banks. The dispute was ended in 1795 by the 
Treaty of San Lorenzo el Real : the fourth Article of which 
provided that the Mississippi should be open to the navi- 
gation of the citizens of the United States from its source 
to tlie ocean. By the twenty-second article they were per- 
mitted to deposit their goods at New Orleans, and to exjiort 
them from thence on payment of warehouse hire. 

The United States having acquired Louisiana, by the 
cession of Napoleon, on April 30, 1803 (/), and Florida 
“y Ireaty with Spain on February 22, 1819, thereby 
deluded within their territory the whole of this inagni- 


VOL. 


(l) Vule fxist. 

* II 



242 


IXTERNATIONAL LAW. 


ficent stream, tlie Mississippi, from its source to the Gulf 
of^Mexico. The stipulation in favour of .British subjects, 
in^he Article of the Treaty of 1783 was not renewed 
in the Treaty of Ghent, December 24, 1814; and it is 
therefore maintained by the United States that the right 
of navigating the Mississippi is vested exclusively in their 
subjects (;w). 

CLXX. The case of the navigation of the St. Lawrence 
was as follows («) : — 

Great Britain possessed tlie northera shores of the lakes, 
and of the river in its whole extent to the sea, and also the 
southern bank of the river from the latitude forty-five degrees 
north to its moUth. The United States possessed the southern 
shores of the lakes, and of the St. Lawrence, to the jioint 
where their northern boundary touched the river. These 
two Governments were therefore placed pretty much in the 
same attitude towards each other, with respect to the navi- 
gation of the St. Lawrence, as the United States ajid Spain 
had been in with respect to the navigation of the Mississippi, 
before the acquisitions of Louisiana and Florida. 

The argument on the part of the United States was much 
the same as that which they had employed with respect to 
the navigation of the Mississippi. They referred to the 
dispute about the opening of the Scheldt iu 1784, and con- 
tended that, in the case of that river, the fact of the banks 
having been the creation of artificial labour was a much 
stronger reason, than could be said to exist in the case of 
the Mississippi, for closing the mouths of the sea adjoining 

(w) Wheafon’g Hist. p. 606-9; EUm. t. i. p. 185-6. 

(«) Wheatm's Hist. 6 , 12, 17, citing Mr. Secretary Clay’s letter to Jir. 
Gallatin, American Minister in I<oudon, June 10, 1826, 

Congress Documents, sees. 1827, 1828, No. 43. 

American Digger on the Navigation of the 8t. Lavortnee. — Ib. sees. 1627> 
1828, No. 43. 

British Paper on the Navigation of the St. Lawrence, 

Wheaton^ s Mim, i, 187. 

/SKote Papers (English), 1826-9. 

Tima Newspaper, Oct. 26, 26, 1850. 



RIVERS — THE ST. LAWRENCE. 


24.3 


the Dutch Canals of the Sas and the Swin, and that this 
peculiarity probably caused the insertion of the stipulation in 
the Treaty of Westphalia; that the case of the St Law- 
rence differed materially from that of the Scheldt, and fell 
directly under the principle of free navigation embodied in 
the Treaty of Vienna respecting the Rhine, the Neckar, tlie 
Main, the Moselle, the Meuse, and the Scheldt But 
especially it was urged, and with a force which it must 
have been difficult to parry, that the present claim of tlie 
United States with respect to the navigation of the St, 
Lawrence was precisely of the same nature as that which 
Grreat Britain had put forward with respect to the navigation 
of tiie Mississippi when the mouth and lower shores of that 
river were in the possession of another State, and of which 
claim Great Britain had procured tlic recognition by the 
Treaty of Paris in 176.3. 

The priticipal argument contained in the reply of Great 
Britain was, that the liberty of passage by one nation 
through the dominions of another was, according to the 
doctrine of the most eminent writera upoti International 
Law, a qualified occasional exception to the paramount 
rights of property ; that it was what these writers called an 
imperfect, and not a perfect {o) right ; that the Treaty of 
Vienna did not sanction this notion of a natural right to the 
free passage over rivers, but, on the contrary, the inference 
was that, not being a natural right, it required to be esta- 
blished by a convention ; that the right of passage once con- 
ceded must hold good for other purposes besides those of 
trade in peace, for hostile purposes in time of war ; that the 
United States could not consistently urge their claim on 
principle without being prepared to apply that princii)Ie, by 
way of reciprocity, in favour of British subjects, to the navi- 
gation of the Mississippi and the Hudson, to which access 


, («) The inaccuracy of this phrase has boon already noticed. It was 
‘“tended to say that the navigation was a right not itricti juris, hut a 

waceatioa of comity. 



244 INTERNATIONAL LAW. 

might be hail from Canada by land carriage or by the Canals 
of New York and Ohio. 

The United States replied, that practically the St. Law- 
rence was a strait (p), and was subject to the same principles 
of law ; and that as straits are accessory to the seas which 
they unite, and therefore the right of navigating them is com- 
mon to all nations, so the St. Lawrence connects w'ith the 
ocean those great inland lakes, on the shores of which the sub- 
jects of the United States and Great Britain both dwell ; and, 
on the same principle, the natural link of the r?w«?r, like the 
natural link of the strait, must be eipially available for the 
puriK)SCS of passage by both. The passage over land, which 
was always pressing upon the minds of the writei’s on Inter- 
national Law, is intrinsically different from a passage over 
water ; in the latter instance, no detriment or inconvenience 
can be sustained by the country to which it belongs. I’he 
track of the ship is effaced as soon as made ; the track of 
an army may leave serious and lasting injury behit)d. The 
United States would not “shrink” from the application of 
the analogy with respect to the navigation of the Missis- 
sippi, and whenever a connection was effected between it 
and Upper Canada, similar to that existing between the 
United States and the St. Lawrence, the same j)rinci[)!e 
should be applied. It was, however, to be recollected, that the 
case of rivers which both rise and disembogue themselves 
within the limits of the same nation is very distinguishable, 
upon principle, from that of rivers which, having their sources 
and navigable portions of their streams in States above, dis- 
charge themselves within the limits of other States below. 

Lastly, the fact, that the free navigation of rivers had been 
made a matter of convention did not disprove that this navi- 
gation was a matter of natural right restored to its proper 
position by treaty. 

The result of this controversy for many years produced no 
cfTcot. Great Britain maintained her exclusive right. Tlie 


ip) Vide- post, the law as to Straits. 



BIVERS— THE ST. LAWRENCE. 


245 


United States still remained debarred from the use of this 
great highway, aud were not permitted to carry over it the 
produce of the vast and rich territories which border on the 
lakes above to the Atlantic Ocean. 

It seems difficult to deny that Great Britain may have 
grounded her refusal upon strict Law; but it is at least 
equally difficult to deny, first, that in so doing she put iu 
force an extreme and hard law ; secondly, that her conduct 
with respect to the navigation of the St. Lawrence was in- 
consistent with her conduct with respect to the navigation of 
the Mississippi, On the ground that she possessed a small 
tract of domain iu which tlie Mississippi took its rise, she 
insisted on her right to navigate the entire volinne of its 
waters: on the ground that she possessed both banks of the 
St. Lawrence where it disembogued itself into the sea, she 
denied to the United States the right of navigation, though 
about one half of the waters of Lakes Ontario, Erie, Huron, 
and Superior, and the whole of Lake Michigan through 
Avhich the river flows, were the property of the United 
States. 

Any blame, however, attaching to the conduct of Great 
Britain, was removed by the Reciprocity Treaty of June 
5, 1854, which provided by Article IV. as follows: — "It 
“ is agreed that the citizens aud inhabitants of the United 
“ States shall have a right to navigate the river St. Ijaw- 
“ rcuce and the Canals of Canada, used as the means of 
“ communicating between the great lakes and the Atlantic 
“ Ocean, with their vessels, boats, and crafts, as fully and 
“ freely as the subjects of her Britannic Majesty;; subject 
“ only to the same tolls and other assessments as now are or 
" hereafter may be exacted of ber Majesty’s said subjects ; 

“ it being understood, however, that the British Government 
retams tVie right of suspending this privilege on giving 
“due notice thereof to the Government of Uie United 
States ; that if at any time the British Government should 
exercise the said reserved right, the Government of the 
United States shall have the right of suspending, if it 



24G 


INTERNATIONAL LAW. 


“ clause of the 
“ Government of; 


think fit, the operation of Article III. of the present 
“ Treaty, in so far as the province of Canada is aflFected 
“ thereby, for so long as the suspension of the free navi- 
“ gation of the river St. Lawrence or the canals may con- 
“ tinue ; that Biitish subjects shall have the right freely to 
“navigate Lake Michigan with their vessels, boats, and 
“ crafts, so long as the privilege of navigating the river 
“ St. Lawrence, s^|T^..to American citizens by the above 

article, shall continue; and the 
,.,^j^hited States further engages to urge 
“ upon the State governments to secure to the subjects of 
“ her Britannic Majesty the use of the several State canals 
“ on terms of equality with the inhabitants of the United 
“ Stales ; and that no export duty, or other duty, shall bo 
“ levied on lumber or timber of any kind, cut on that portion 
“ of the American territory in the State of Maine, watered 
“ by the river St. John and its tributaries, and floated down 
“that river to the sea where the same is shipped to the 
“ United States from the province of New Brunswick ”(y). 

On January 18, 1865, the President of the United States 
put an end to this Treaty, in pursuance of a Resolution of 
Congress, availing himself of a provision in the Treaty, ten 
years having elapsed since its execution (r). 

CLXXl. The Uruguay and Parana have been opened 
to all merchant vessels by a Treaty of July 10, 1858, 
between the United States and the Argentine Confederation, 
and by a Treaty, May 13, 1858, between the United States 
and Bolivia. The latter country declares “ that, in ac- 
"cordance with fixed principles of International Law, it 
“ regards the Amazon and La Plata, with their tributaries, 
** as highways or channels opened by nature on the 
“commerce of all nations.” Ecuador, November 26, 
1858, has declared her rivers free. Peru appears to have 


(?) nerldet'a Treaties, vol. ix. 998, x. 647, xi. 898. 

See Address of President Pierce, 1863, Ann. Jtetf, for that year, p. 414. 
See Ltmrmc^s Wkeatm, n. 114, p. 861. 

(r) Dana’s WAsatm, p. 181 ; U. S. Lam, xui. 666. 


THE OPEN SEA. 


247 


still a cotitroverey as to the Peruvian tributaries of the 

Amazon (j?). 

CLXXIL The question, whether the open sea, or main 
ocean, could be appropriated (?) by any State to the ex- 
clusion of others, has been the subject of celebrated con- 
troversies. Spain and Portugal, at different c{)ochs, have 
claimed exclusive right, founded upon the titles of previous 
discovery, possession, and I*apal the navigation, 

commerce, and hsherles of the Atla^ip^l^ Pacific Oceans. 
The Mare Liberum (m), written by 1609, the chief 

object of which was to demonstrate the’ injustice of the 
Portuguese pretensions, founded on their discovery of the 
Cape of Good Hope, to the exclusive navigation of the 
African and the Indian seas, — the Mare Clausum, written 
by our OAvn countryman Sclden, to establish the exclusive 
right of Great Britain to the British seas, — Puffendorf, in 
the fifth chapter of his fourth book “De Jure Naturali 
“ Gentium,” — and the essay of Bynkershock in 1702, De 
Dominio Afam, have exhausted this theme (a:). It is sufficient 

(*) Dam's JV/tealon, 204-6. 

rresideut Pierce’s Mesaige to United States, 1863; Ann. Reg. 1853, 
p. 323. 

Lawrence's Wheaton, 360, n. 114. 

See Speech of the JSarl of Qarendon, Secretary of Foreign Affairs, in 
the- House of Loi'ds, June 8, 1853. — Hansards Farl. Dd>, vol. cxxvii. 
No. 6, pp. 1073-4. 

(0 Albericus Gettiik’s, Hb. i. c. viiL Admcaliones Hispanicee, maintains 
(in 161.3) the claim of Oreat Britain to the Narrow Seas. 

Wheaton's Law of Nations, 1, 225-0. 

Vattel, lib. i. c. xxiii. 

Martens, lib, ii. c. i. s. 43, De f Ocean, lib. iv. c. iv. s. 167. Droits 
f Octan et sur la Mer dcs Indes. 

OUiOher, ii. p. 28. “ Das Hanptwork bierbei koinmt dorauf an, doss 
man die o^ne See, oder das gross* Weltmeer von don einzelneu Tlieilou 
desaelben, die an oder zwischen die Lauder der Nadouen geben, uuter- 
scheide.” 

(’*) A noble work, which cannot now bo read without profit to the 
mader and admiration for the writer. It was dedicated “ Ad Frincipes 
Popnlosque liberos Orlns Ghrisdoni.” 

{x) When the Spanish envoy, Mendoza, complained to the Queen 
Mzabeth that Engli^ ships presumed to trade In the Indian Seas, that 



248 


INTERNATIONAL LAW. 


to s.ay, that the reason of the thing, the preponderance of 
authority, and the practice of nations, have decided, that 
the mainoceani inasmuch as it is the necessary highway of 
all nations, and is from its nature incapable of being con- 
tinuously po.sscssed, cannot be the property of any one State. 

Igitur quicfjnid dicat Titius, quicupiid Mievius, ex 
“ possessioue jure naturali et gentium suspenditur do- 
minium, nisi paojta dominium, citra possessionem, dc- 
“ fendant, ut defendit jus cujusque clvitatis proprium”(y). 
It is possible, as is; indeed apparent from this citation, that 
a nation may acquire exclusive right of namgation and 
Jishing of the main ocean as against another nation, by 
virtue of the specific provisions of a treaty ; for it is com- 
j)etcnt to a nation to renounce a portion of its rights ; and 
there have been instances of such renunciation, both in 
ancient and modern times. 

CLXXIII. The treaty of peace, justly called “famous” 
by Demosthenes (r) and Plutarch («), whereby the Athenians 
extorted from the Persians a pletlgo that they would not ai»“ 
jjroach the Greek sea within the space of a day’s journey on 
horseback, and that no ship of war should sail between the 

qutien gave for answer, — " That she aaw no n)asoa that could exdiido 
Lor, or other nations, from navigating to the Indies, since she did not 
acluiowlodge .nny grurogalive that Spain might claim to that olfect, and 
much kss any right in it to preecribo laws to those who owed it no oho- 
dicuce, or to delwr them trade. Tliat the lUnglish navigated on the 
ocean, the use of which was like that of the air, common to all men, m)d 
which, by the very nature of it, could not foil within the {lossession or pro- 
perty of any one."— tn Vita JElizabdJi, ad ann. 1680, p. m. 328 et seq. 

(t/) Btptkerahoek, (^era, t. vL p. SCI. 

(a) K.aWiav rov 'irnroMKov, t6v Tavrqv ti/v otto irdvrttv BpvXKovfitniv 
tip^mjv irptaPtia-avra, Zimrov ptv dpuftov fjpfpas mQ pi) KjaraSatvttv «Vi ri)V 
AiXarrav /SatriX/a furis Si XtXiSoviuv xai Kvavewv irXoi^ paKp^ P7 — 
Orat. <h fdm Legat., Demotth. 

(a) Tovro ro tpyov ovras trarTtlvaae Tljv yvi>ptp> rov paoiXtws, ware 
owSfaffat rqu mpi^orfrov elprjvqv tKtivqv, antov piv ipopov ati 
'EXXt)viK4< aTtixfiv SaXuatnfs, tviov df Kvavcoii/Kat XtXdSovtwv paspq vip lau 
xdXKtp^fXtf pri nXtiv.'^Vlutarch, in vita Oimon. 

(iratiia, 1. ii. c. iii. s. 16. 

Vattel, 1. i. c. xxiii. s. 284. 



THE OPEN SEA, 


249 


Cyatiean and Chelitlonian isles; the treaties whereby the 
Carthaginians bound the Romans not to navigate the Medi- 
terranean beyond a certain point, and whereby the Romans 
imposed restrictions of the like kind upon the Illyrians, and 
on King Antiochus ; — these are memorable examples of the 
voluntary resignation of a nation’s intrinsic rights. 

So, in modern times, the House of Austria (6) has re- 
nounced, in favour both of the English and Dutch, her right 
to send ships from the Belgic provinces to the East Indies ; 
and the Dutch attem})ted to interdict Spanish ships, sailing 
to the Philippine Islands, from doubling the Cape of Good 
Hope. 

CLXXIV. Instances of this kind, however, are far from 
proving that the main ocean is capable of becoming property. 
“Possunt cnim ut singuli” (Grotius truly remarks) “ita 
“ et populi pactis, non tantum de jure quod proprie sibi cora- 
“ ]>etit, sed ct de eo quod cum omnibus hominibus commune 
“ habent, in gratiam ejus cujus id interest deccderc ”(c). He 
Illustrates this position, according to his wont, by a reference 
to the Roman Law. A person sold his maritime farm with 
the condition that the purchaser should not fish for thnnnies 
to the pi'cjudice of another maritime farm, which the seller 
retained in his possession. Upon this case Ulpian gave his 
opinion that, although the sea belonged to the class of things 
which could not be subjected to a seroitus{d) of this kind, 

(6) T^'aitS de Vienne, 16 mars 1731, Art. 6. 

(() Grotius, 1. ii. c. iii. s. 16. 

Vttttd, 1. i. c. xsiii. b. 284. 

liarheyrac rcmarlffl in a note on this passage : “ Oela est vrai ; raais rion 
n'emp^he aussi que, quaud on fait dee tiaitt>8 comtno ceux dont il s’agit, 
on n’ait dessein de s’assurer par 1& la propri(5t(S de quelqne mer, et 
d’obligor les autres it la reconnoitre. M. Vitearius, dans sou AbrtSgd do 
notre auteur (1. ii. c. iii. s. 18), pretend que, si celui qui fait uu tel 
traitd 6toit deji maitre de la mer dont il vout que Tautro s’tSloigne, il no 
soroit pas n^cossaii'e de stipulor une telle clause. Mais il ne s’est pas 
Bouvenu de ce qu’il dtahlit lui-meme, apris notro auteur (1. iL o. xa-.), 
qu il y a des traitds qui roulent snr des choses d4ja dues, m€me par lo 
llroit naturel." 

(rf) Dip, 1, viii. t, iv. leg. 13: “ Venditor fundi Qeroniam fundo Ba- 



250 


INTERNATIONAL LAW. 


yet the hona fide$ of the contract required that the restriction 
should be binding against the purchaser, and those who suc- 
ceeded to his rights and estates. 

The right of navigation, fishing, and the like, upon the 
open sea, being jura mera facultafis, rights which do not 
require a continuous exercise to maintain their validity, but 
which may or may not bo exercised according to the free 
will and pleasure of those entitled to them, can neither be 
lost by non-user or prescribed against, nor acquired to tlie 
exclusion of others by having been immcmorially exercised 
by one nation only. !N^o presumption can arise that those 
who have not hitherto exercised such rights have abandoned 
the intention of ever doing so (e). 

CLXXV. But though no presumption can arise, it is the 
opinion of Vattel — who holds most explicitly, in more than 
one part of his work, the doctrine Avhich has just been laid 
down — that such non-user on the part of other nations may 
possibly, under certain circumstances, become clothed with 
the character of a tacit consent and convention, which may 
found a title in one nation to exercise such rights to the 

tiimo, qnein retiuobat, legem dederat, ne coutra cum piscatio tliyimaria 
cxerceretur. Quamvia mari, quod natura ointubus patet, servitus imponi 
privatii lego non potest, quia tamen Imna fides contractus legem servnri 
Ycnditionia exposcit, pereonte possedentiuiu aut in jus eorum succcdcntiuni 
per stipiilatiouis vol vendilinnis legem obligantiir.” 

(c) Vaitel, 1. i. c. viii. s. 05 : “ Si les droits touchant lo commerce wmt 
sujets 4 la prescription.” 

Ijib. i. c. xxiii. s. 285-6. 

Ptifferulotf, Jut. Nat. H Gent; 1. iv. c. v, s. 6. 

Hefflers, s. 74 : “ Sogar ein unvordcoblicker Bentzstaiid, wenn er niclit 
cin frciwilliges Ziigestandnlss andercr Natlouen deuUick erkennen lasst, 
vermag keine ausschliesslicben Befugnisse bei solchon res merefacuUatis 
zu ertbeilen.” 

Wheaton's Elements, vol. i. p. 228 : “ The authority of Vattel would bo 
full and explicit to the same purpose, were it not weakened by the con- 
cession, that though the exclusive right of navigation or fishery in the sea 
cannot be claimed by one nation on the ground of immemorial use, not 
lost to others by non-nser on the principle of prescription, yet it may be 
thus establisbed where the non-nser assnmos the nature of a consent or 
tacit agreement, and thus becomes a title in favour of one nation against 
another.” 



NOOTKA SOUND. 


251 


exclusion of others. " Qu’une nation cn possession de la 
“ navigation ct de la pechc cn certains parages y pr^tendo 
un droit exclusif, et defonde ^ d’autres d’y prendre part ; si 
» cclles-ci obcissent k cette defense, avee dcs marques suffi- 
“ santes d’acquiescement, elles renoncent tacitement & leur 
“ droit en faveur de celle-ld, et iui cn dtablissent un, qu’elle 
“ pent legitimement soutenir centre dies dans la suite, sur< 
“ tout lorsqu’il est confirm^ par un long usage ” (/). 

CLXXVI. Mr. Wheaton does not appear to agi’cc with 
the qualification of the doctrine contained in the passage 
just cited; but the reasoning of Yattel docs not seem to be 
unsound : the case for its application is not often likely to 
occur. 

CLXXVII. In 1790, May 25 (ff), Lord Grenville vindi- 
cated the British dominium over Nootka Sound against the 
Spaniards. In a message laid before both Houses of Par- 
liament it was said that " his Majesty lias received informa- 
“ tion, that two vessels belonging to his Majesty’s subjects, 
“ and navigated under the British flag ; and two others, of 
“ which the description is not hitherto sufficiently ascertained, 
“ have been captured at Nootka Sound, on the North-western 
“ coast of America, by an officer commanding two Spanish 
“ ships of war ; that the cargoes of the British vessels have 
“ been seized, and that their officers and crews have been 
“ sent as prisoners to a Spanish port. 

“ The capture of one of these vessels had before been 
“ notified by the Ambassador of his Catholic Majesty, by 
“ order of his Court, who, at the same time, desired that 
“ measures might be taken for preventing his Majesty’s 
“ subjects from frequenting those coasts which were alleged 
“ to have been previously occupied and frequented by the 
“ subjects of Spain. Complaints were also made of the 
“ fisheries carried on by his Majesty’s subjects in the seas 
" adjoining to the Spanish continent, as being contrary to 

(/) VaUd, Le Droit deg Qtna, t. i. 1. i. c. xxiii. 8. 286. 

(ff) Annutd JRe^er, vol, xxxii. 1790. 



252 


INTEHNATIONAL LAW. 


** the rights of the Crown of Spain. In consequence of this 
** communication, a demand was immediately made, by his 
“ Majesty’s order, for adequate satisfaction, and for the 
restitution of the vessel previous to any other discussion. 

“ By the answer from the Court of Spain, it appears that 
” this vessel and her crew had been set at liberty by the 
“ Viceroy of Mexico ; but this is represented to have been 
“ done by him on the supposition that nothing bnt the 
“ ignorance of the rights of Spain encouraged the individuals 
“ of other nations to come to those coasts for the purpose of. 
“ making establishments, or carrying on trade ; aiul in con- 
“ formity to his previous instructions, requiring him to show 
“ all possible regard to the British nation, 

“ 2^0 satisfaction is made or offered, and a direct churn is 
“ asserted by the Court of Spain to the exclusive rights of 
“ sovereignty, navigation, and commerce in the territories, 
“ coasts, and seas in that part of the world. 

“ His Majesty has now directed his minister at Madrid to 
make a fresh representation on this subject, and to claim 
such full and adequate satisfaction as the nature of the 
“ case evidently requires. And, under these circumstance.'', 
“ his Majesty, having also received information that considcr- 
" able armaments are carrying on in the ports of Spain, hiis 
“judged it indispensably necessary to give orders for making 
“ such preparations as may put it in his Majesty’s power to 
“ suit with vigour and effect in support of the honour of his 
“ Crown and the interests of his people. And his Majesty 
“ recommends it to his faithful Commons, on whose zeal and 
“ public spirit he has the most perfect reliance, to enable 
“ him to take such measures, and to make such augmentor 
“ tion of his forces, as may bo eventually necessary for this 
“ purpose. 

“ It is his Majesty’s earnest wish, that the justice of his 
“ Majesty’s demands may ensure, from the wisdom and 
“ equity of his Catholic Majesty, the satisfaction which is 
“ so unquestionably due ; and that this affair may be tcr- 
minated in such a manner as to prevent any grounds of 



THE BALTIC. 


253 


" misunderstanding in future, and to continue and confirm 
« that harmony and fricndsiiip which has so happily subsisted 
« between the two Courts, and which his Majesty will 
“always endeavour to maintain and improve by all such 
“ means as arc consistent with the dignity of his Majesty’s 
“ Crown, and the essential interests of his subjects.” The 
dispute was terminated by the Nootka Sound Convention, 
the importance of wliich was much insisted upon in the dis- 
cussions between Great Mritain and the North American 
United States relative to the (lucstion of the Oregon boun- 
dary (/<). 

CLXXVIII. Upon April 17, 1824 (j), a Convention 
was entered into at St. Petersburg, between the United 
States of America and liussia, respecting the navigation 
of the Pacific Ocean, and the forming of settlements upon 
the north-western shores of America. By this Convention 
it was agreed generally, that the subjects of both countries 
might freely navigate the Pacific, or South Sea, occupy 
shores as yet unoccupied, and enter into commerce with 
the native inhabitants ; and it was stipulated that for the 
future it should be unlawful for the subjects of the United 
States to make any settlement on the north-west coast of 
America, or of the adjacent isles, “ au nord du cinquantc- 
“ quatrieme degrd et quarante minutes dc latitude septentri- 
“ onale ; ” and for any subjects of Russia to make any settle- 
ment au sud le la mcme parall61e ” (j). This Convention 
therefore rcstiicted the natural rights of these two countries ; 
but it could not extend beyond them, or have any effect) per 
«e, upon other countries. 

CLXXIX. Denmark (k) has not always confined her 
pretensions of sovereignty to the narrow sea of the Baltic, 
but has also extended them to the open N orth Sea (/). Queen 


(A) Vide post, 

(i) Ratified January 11, 1S25. 

(j) Martens d; de Cussi/, Itixueil de Traitis, t. iii. p. 669. 
(ft) ScJdeffd, StnatesreeM Danemarks. 

(/) Vide post, § clxxxix. 



254 


INTERNATIONAL LAW. 


Elizabeth complaincilj in a letter which she wrote to tlie King 
of Denmai'k, in 1600, of the manner in which British vessels 
were prevented from fishing in this sea, maintaining their 
right to do so as resting upon an undoubted principle of 
law (»»). 

At a very early period Denmark considered herself 
entitled to the sovereignty or dominium over the whole 
Sound, and always founded her right to Sound dues not 
only on the Treaties concluded with several States, but also 
and principally upon this dominium. 

It was as a recognition of this dominium that Denmark 
exacted a salute to Kronborg from every man-of-war pass- 
ing tlirough the Sound as well when they went along the 
Swedish as when they went along the Danish coast. Tim 
salute was given by Swedish men of war, even iiftor 
SAveden had by the peace of Copenhagen not only gained 
possession of Scania, but also been exempted from the pay- 
ment of Sound dues. This last advantage, however, Avas 
lost to her in 1720. 

After the peace of Copenhagen, 1660, Denmark never 
claimed possession of the AAdiole of the Sound, but admitted 
that Sweden, with the exception of the duty to salute Kron- 
borg, possessed the jus littoris, that is, the dominium over the 
sea near the coast of Scania. 

Since the Treaty of 1857, it has become a question of 
purely historical interest, how far and how long the dominium 
of Denmark was recognized by other States. I incline, hoAv- 
ever, to believe tliat the supremacy claimed by Denmark 
over the Sound and the two Belts, through which tlie Baltic 
Sea finds its AA^ay into the ocean, was founded upon the valid 
international title of immemorial prescription confirmed by 

(ffi) “ Jiegiam proinde protectionem nostram implorant, atqiie hamilitcr 
supplicant ne ab honcstissinia hac vivendi ratione (cui jam inde a priniia 
annifl asaueveront), alti nempe marts piscatione, Jure Gentium omniunique 
Natiomim moribus libera, excludi illos fiicile permittaraus.^-- 
Fmd, t. xvi. p, 396 : ‘‘ A Ite^na ad Regcm Dauiot ; super Piscatione ut 
Alto Mari permittenda.” 



NABROW SEAS. 


255 


many treaties with various Maritime States. The dues, 
however, which Denmark levied upon ships passing these 
straits had long been the object of much complaint and 
the cause of much irritation to foreign States, and had 
become in fact very injurious to trade, owing to the 
detention of vessels which the collection of these dues 
occasioned. In 1857 the whole subject was happily ad- 
justed by Treaty with the Great European Powers. The 
right of Denmark to levy these dues was not distinctly re- 
cognized, but compensation was made to her by payment 
of a capital sum (m) on the ground of indemnity for main- 
taining lights and buoys, which Denmark stipulated to 
maintain and to levy no further duties. The United Stales 
declined to take any part in this European Convention for 
what President Pierce considered “the most cogent reasons.” 
He stated — “ One is, that Denmark does not offer to submit 
“ to the Convention the question of her right to levy the 
“ Sound dues. A second is, that if the Convention were 
“ allowed to take cognizance of that particular question, 
“still it would not be competent to deal with the great 
“international principle involved, which affects the right 
“ in other cases of navigation and commercial freedom, as 
“ well as that of access to the Baltic. Above all, by the 
“ express terms of the proposition, it is contemplated that 
“ the consideration of the Sound dues shall be commingled 
“ with and made subordinate to a matter wholly extraneous — 
“ the balance of power among the Governments of Europe. 
“ While, however, rejecting this proposition, and insisting 
“ on the right of free transit into and from the Baltic, I have 
“expressed to Denmark a willingness on the part of the 
“ United States to share liberally with other Poivers in cora- 
“pensating her for any advantages which commerce shall 
“ hereafter derive from expenditures made by her for the 
“ improvement and safety of the navigation of the Sound or 


(n) The sum ptud by Great Britain woe a million and a quartor. 



256 


INTERNATIONAL LAW. 


** Belts ”( 0 ). Accordingly a separate Treaty was made be- 
tween the United States and Denmark, April 11, 1857, by 
which Denmark declared the Baltic open to American 
vessels, and stipulated to maintain buoys and lights and 
furnish pilots, if desired, for which she received a certain 
sum of money. 

Since the making of these Treaties it would be difficult 
to maintain that Denmark now possesses an)' other domitiion 
over the Sound than that which every State possesses over 
the sea along its coasts. The Declaration of August 15, 
1873, was apparently only intended to regulate pilotage, and 
the statement in Article IV. of the Declaration, that it does 
not in the least put any restrictions on the dominion over 
the sea near the coasts belonging to each Power respectively, 
according to the principles of International Law, can now 
scarcely admit of any other construction than that Denmark 
and Sweden equally possess the usual and ordinary rights of 
the jus littoris, 

{o) See ^nn. Rfg. for 18G5, p. 291. Ilerf slot's TrmiteSf x. pp. 7«’56, 
742, 74JJ. Dam's JrAeatm, p. 185, n, 112. lAiwmccs W/uvdou, p. 5.53, 
n. no. 



NARttOW SEAS. 


257 


CHAPTPm VI. 

NAKIIOW SEAS, AS DISTINGUISHED PKOM THE OCEAN. 

GLXXX. Claims have been preferred by different 
nations to the exclusive dominion over the seas surrounding 
their country : if not to every part of such seas, to an extent 
far beyond the limits assigned in the foregoing paragraphs. 

This kind of claim is distinguished from the claim of 
jurisdiction over the ocean by being confined to what are 
called the narrow or adjacent se.aS) they not being (it is con- 
tended), like the ocean, the great highway of the nation. It 
is further distinguished from the case of the Straits M'hich 
has just been discussed, by the fact of the claimants not 
possessing the opposite shore. 

CIjXXXI. This claim is rested upon immemorial usage, 
upon national records, upon concessions of other States, upon 
the language of treaties. Considering the nature of the 
claim, and of the subject over which it is to be exercised, it 
cannot be built securely upon a less foundatiou than the 
express provisions of positive treaty, and can be valid only 
against those nations who have signed such treaty. “ There 
“ may, by legal possibility ” (as Lord Stowellsays) (a), “exist 
“a peculiar property excluding the universal or common 
“ use ; ” but the strongest presumption of law is adverse to 
any such pretension. The Portuguese affected at one time 
to prevent any foreign vessel from navigating the African 
seas near the Bissagos Islands : and it is known tlrat Great 
Britain once laid claim to exclusive right of property and 

(a) The Twee Gehreeders, 3 C. St‘b, AJnu Rep. 339. 

Ika Britrmniiche Meer, Giinther, vol. ii. 8. 20, p. 30. 

VOL. I. S 



258 


INTEIINATIOKAL LAW. 


jurisdiction, not merely over the British Channel extending 
from the island of Oumant to the l*as de Calais^ but over 
the four seas which sun'ound her coasts (b). Kor was this 
only Avhilc the Duchy of Normandy was held witli the British 
dominions; or even while Calais, or the Fas de Calais, 
belonged to Great Britain, a circumstance of considerable 
weight with respect to their claim. Alberious Gentilis, in 
one of his Advoeationes Ilispanicce (e), published in 1613, 
supports these lu-ctensions. Queen Elizabeth seized upon 
some Hanseatic vessels lying at anchor off Lisbon for having 
passed through the sea north of Scotland without her per- 
mission. 

CLXXXII, In support of this doctrine, Selden (d) wrote 
his celebrated Mare C/rtM.«wjM,inwhichhe sought to establish 
two propositions: — 1. That the sea might be property. 
2. That the seas which W'ashcd the shores of Great Britain 
and Ireland were subject to her sovereignty even as far as 
the northern pole. 

The opinions of jurists, as well as the practice of nations, 
have decided, that this work did not refute the contrary 
positions laid dowi by Grotiiis in his Mare Liberum, to whicii 
it purported to be an answer. Selden dedicated his work 
to Charles I. ; and so fully did that monarch imbibe its prin- 
ciples, that in 1619 he instructed Carloton, the British am- 
bassador, to complain to the States General of the Dutch 
provinces of the audacity of Grotius in publishing his Mare 
Liberum, and to demand that he should be punished. Not 
less agreeable was this doctrine to Cromwell and the Re- 
publican Parliament. They made war upon the Dutch to 

(i) mieatcu's Ilisf, Part. i. s. 18 , p. IM, &c., contains a clear and v-alu- 
iilile account. 

(c) Lib. i, cap. wi. 

(tT) Joh, SeMaii Mare Qamum, me de Dornmio Maris, lib. ii. : “Priiiio, 
mare ex jm-o nalune sive gentium lioniinuni non esse commune, sed do- 
minii privati sive proprietatis capox paritcr ac tellurem esso demonstratuv. 
Seevndo, Screnissimum Magmo Bntannue Itegem inaris circuiuflni ut in- 
dividum at<]iic perjtotuffi Imperii Biitannici appendicis dorainum esse 
asiseritur.” 



NABROW SEAS. 


259 


compel thcia to acknowledge die British empire over these 
sea8(«f)* 

CLXXXIII. The rights occasionally claimed by Great 
Britain in these seas were chiefly those of exclusive fishing, 
and of exacting the homage of salute from all common vessels. 
But it is very remarkable that Sir Leoline Jenkins, who was 
in fact the expounder of all international law to the Govern- 
ment of Charles II. and James II., appears never to have 
insisted upon these extravagant demands, but to have confined 
the rights of his country witliin the just and moderate limits 
which have been already stated. 

CLXXXIV. It is true that the Butch appear to have 
occasionally admitted the exclusive right of fishery, by 
making payment and taking out licences to fish — payment 
and licences which were afterwards suspended by Treaties 
between England and the Burgundian princes. It is true 
that, by the fourth Article of the Treaty of W estminster, 
concluded in 1674, the Dutch conceded the homage of the 
flag in the amplest manner to the English. “ It ivas carried ” 
(says Sir W. Temple, the negotiator of the Treaty) “ to all 
“ the height his Majesty could wish ; and thereby a claim 
” of the crown, the acknowledgment of its dominion in the 
“ Narrow Seas, allowed by treaty from the most pow’crful 
“ of our neighbours at sea, which had never yet been yielded 
“ to by the weakest of them that I remember in the whole 
“ course of our pretence ; and had served hitherto but for an 
“ occasion of quai*rel, whenever we or they had a mind to it, 
“ upon cither reasons or conjectures ” (/). 

(e) Oonite tfe Garden, Traite de Diplirm, t. i. p. 402. 

(/ ) “ Priudicti Ordines Generalcs Unitiiruiu Proviuciorum debite ex 
parte sua agnoscentes jus supiamemorati Serenisaiiui Domini Magnee 
Dntanniffl Itegia, ut vexillo suo in inuribus infra nominandia lionos 
naboatur, dedarabunt et dedarant, con(»rdabunt et concordant, quod 
qusecunque naves nut navigia ad pnefatos Unitos Provincias spectantia, 
rtve naves bellicm, eive alim, etoque vel singulse vel in classibusconjunctse, 

ullis moribus a Promontorio Fink Ter res dicto usque ad 'medium 
punetum terra van Staten dida in Norwegia, quibusUbet navibus aut 
^^^'igiis ad Serenissimum Dominum Magna Biitannia Begem specton- 



260 


INTERNATIONAL LAW. 


CLXXXV. Upon this concession, so humiliating to the 
countrymen of Ruytcr and Van Tromp, so little to be 
expected by those who in 1667 had demolished Sheerncss 
and set fire to Chatham, Bynkershoek (^) ingeniously re- 
marks: “ Usu scilicet maris et /rMcftfcontentiOrdines,alioruin 
ambition!, sibi non damnosoe, baud difiiculter cedunt.” 
And in his Treatise De Dominio Maris, published in 1702, 
and before the work from which the extract just cited is 
taken, he observes, on this Article of the Treaty ; “ Sed 
"quod ita accipiendum est, ut omnes pactioncs, quas, ut 
" hello abstineatur, paciscimur, nempe Anglis id competcro, 
" quia in id convenit, per se enim nihil in eo raari habent, 
“ prascipuum. Porro ut ita hoc accepi velim ut ne credamus 
" Bclgas eo ipso Anglis concessisse illius maris dominium, 
"nam aliud est se subditum prolitevi, aliud majestatem 
" alicujus populi comiter conservaro (ut hacc explicat Pro- 
cuius in Dig. xlix. t. 15, 7, de Captw. et Postlim.); fit 
" hoc, ut intclligamus alterum populum superiorem esse, non 
“ ut intclligamus, alterum non esse liberum” (A). 

CLXXXVI. France, however, as Mr. Wheaton observes, 
never formally acknowledged the British pretension. Louis 
XV. published an ordinance on April 15, 1689, not only 
forbidding his naval officers from saluting the vessels of 
other princes bearing a flag of equal rank, but, on the con- 


tibus sc obviam declcviut, slve ill© naves singtil© sint, vel in mimoi'n 
inajovi, si majestatis suro Britannic© apluslrum sive voxillum Jade appel- 
latuin gerant, pncdict© Unitarum Provindarnm naves ant imvijria 
vexillmn simni e mali vertice detrabent ct supreinuDi velnm demittent, 
eodem modo pmique honoris testimonin, quo ullo unqnara tempore nut in 
illo loco aiiteWc usitatum fuit, versus ullas Majestatis sn© Britannic© nut 
antecessorum suorum naves ab ullis Ordiuum Geheraliiun saoruiuvo 
anteccssorum navibus .” — Tractatm Pack inter Carolum 11. JRegem Magnte 
BrUannia ft Orditws Generates fuidercUi Belgii, 1674, Art. 4. 

Bgnkerskoek, Qiiavt. J. P. 1. ii. c. xxi. 

Tmnjdes Memoirs, ii, p. 200. 

Hume, vol. vi. c. lii. 

Wheaton’s Hist, pp, 166-6. 

(g) Qtuesl. J. P. lib. i. cap. xxi. 

(A) Jh Ihmnso Maris, cap. v. 



NAKROW SKAS. 


261 


trary, enjoining them to require the salute from foreign 
vessels in such a case, and to compel them by force, in 
whatever seas and on whatever coasts they might be found. 
This ordinance was plainly levelled at England. Accordingly, 
in the manifesto published by William III. on May 27, 
1689, he alleged this insult to the British flag as one of the 
motives for declaring war against France (i). 

CLXXXVII. In another part of his very able treatise, 
Bynkcrslioek clearly and irtefragably lays down the princi- 
ples of law applicable to the occupation of the sea: — “ Totura, 
“ qua patet, mare non minus jure naturali cedebat occupanti, 
“ quara terra qumvis, aut teiT® mare proximum. Sed diffi- 
“cilior occupatio, difficillima possessio; utraque tamcn 
“ necessaria ad asscrendum dominium, jure videlicet gentium, 
“.id quod ea disputatio unice exigenda cst. Njmi ex iis, 
“ qum cap. 1 enarravimus, certum est consequi, dominium 
“ inaris prima ab origiue non fuissc qumsitum nisi occuim- 
“ tione, hoc est, navigationc eo animo instituta, ut qui libera 
“per vacuum ponit vestigia princeps, cjus, quod navigat, 
“ maris esse velit dominus ; certum est ct porro consequi, 
“ non aliter id dominium retincre, quam possessione perpetua, 
“ hoc cst, navigationc, qum perpetuo excrcetur ad custodiara 
“maris, si exterura est, habendam: ea namque remissa, 
“ remittitur dominium, ct redit mare in causam pristinara, 
“ atquc ita rursus occupanti primum cedit”(j). 

CLXXXVIII. Thus the opinion of Sir Leolinc Jenkins 
end Bynkershoek arc in harmony upon this question ; and 
in spite of the proclamation of William III. it docs not appear 

to V<dm, Qmmentmre mr VOedmtmwe ih la Marine, liv. v. tit. I, 
p. 689 : Be la LiberW de la Pcche : “ Quo le droit de pavilion, qui ap- 
paniont i la couronno d’Angleten-e, a ^td disputd par Sou ordre (do 
iioma XIV) ; Cl) qui tende a la violation de notTO souverainetd sur la 
loquelle a dtd niaiutenuo de tout temps par nos prdddeesseurs, et que 
nous Botnmes aussi rdsolns de nuuntenir pour I’lionneur de notre couronue 
** de la nation angloiso.” 

'palm's Kittory, p. 156-0, 

O’) Bynker^ek, de Vomnio cap. iii, pp. SOo-O. 



262 


INTERNATIONAL LAW. 


that Great Britian has over again insisted upon any other 
limits to her or to other nations. 

This right, however, was alluded to by Lord Stowcll in 
his judgment in the Maria (k), a Swedish vessel sailing under 
convoy of an armed ship condemned for resisting the bellige- 
rents’ visitation and search: “It might likewise” (he observes) 
“be improper for me to pass entirely without notice, as 
“ another preliminary observation (though without meaning 
“ to lay any particular stress upon it), that the transaction in 
“ question took place in the British Clwmid close upon the 
“ British coast, a station over which the Crown of England 
“ has, from pretty remote antiquity, always asserted some* 
“ thing of that special jurisdiction which the sovereigns of 
“ otlier countries have claimed and exercised over certain 
“ parts of the seas adjoining to their coasts.” 


(A) 1 C\ R>,h. Adm. Rqy, p. 



STRAITS 


263 


CHAPTER VIL 

NARROW SEAS— STRAITS* 

CLXXXIX. With respect to Straits {deh'oits dc mer^ 
M€er€nge^ freta)yVf\\^vo there is, as Grotius says in the passage 
already cited, sivpra et infra f return ^ both the shores of which 
belong to one nation, these may be subject to the proprietary 
rights of that nation. Or if the shores belong to several 
nations, then, according to Piiffendorf (a), the dominion is 

(a) Lib. iv. c. v. s. 7 : ‘‘ Aquandi ot lavandi iisuh dcc raagiii est, 
HOC nisi littoruiu acceJis patet, et revera inexliaustiis est, Tnsorvitquoqna 
aqua marina sail oxcoquendo; sod quo usii accohe littoriim dnnta.vat 
ffaudeiit. Iiiexhaustum quoqiio et innoxia3 utilitatis ost maro quanUim 
ad Tiavigatioiioin. (Vid, 1. xxiii. s. 1. 1). <k Semf\j>ne(L rn$L) Vemra 
sunt praBter bos alii quoque usus mans, qui parlim non ponitus sunt in- 
exhaiisti : partini popiilo maria accoke occaaioneni Janini prselxiTt^ pos^snut, 
lit ex re ipsius non sit, omnoa maria ])aites cirivia promiscuo patent 
Prioria poneris oat piscatio, et collectio revnni in inari nascenthim. His- 
catio etsi in mari fore sit nborior, quam in iluminibus aut iacubus : patf^ 
tamen ex parte cam exhauriri posse, et accolis niaris nialipnionmi iieri,^i 
enines promiscuo gcutes propter liltova aliciijns rogionis volint pisenri ; 
pnesertim cum frequenter certiim piscis, aut roi prtitiosjc genus, puta, 
inargaritte, corallia, succiiuini, in uno tantum maris loco, eoqiie non valdo 
spatioso inveniautur. Ilic nihil obstat, quo minus fclieitatein littoris aut 
vicini niaris ipsorum accolre polins, qnam remolioros sil>i projiriam queant 
asserere ; quibus coctoii non raagis jure irasci aut iiividere possunt, quain 
quod nm munis fe9*t o?mia teUus ; hidin mittit ehir^ niollos sm t/inra Sffh<ei. 

posteriori genere ost, quod mare regionibus maritimis vicem muni- 
monti prrobet.” And at the close of s. viii. he observes — ‘M5x hisce 
patet, hodie post remnavalem ad sunwmun perduclam fastigiiun, pracsuini, 
quomvis populum maritimum, et ciii ullus iiavigaiidi usus, esse domiimm 
mans littoribus siiis pnetenri quousqiie illiid inuiiimonti rationem habere 
censetur: imprimis autem portuum, aut iibi alias comnioda in tevrani 
oxscensio iieri potest. (Bodhm de Rep, 1. i. c. ult. Jjaldi fide asserit : 
jure qmdamniido principim mnnmni mam avcolarmu commtmi receptum 
ut sexaginta milliaiibus a littore. Princeps legem ad littus accedentilms 



264 


INTERNATIONAL LAW. 


distributed amongst them, upon the same principle as it 
would be among the several proprietors of the banks of a 
river : “ eorum imperia, pro latitudine tHrai'um, ad medium 
** usque ejusdem pertinere intelliffentur” 

The exclusive right of the Bjfitish Crown fo the Biistol 
Channel, to the channel between Ireland and Great l||$tain 
{Mare Hibemicum, €anal de Saint-G^rge')Jiilji^ to, the chan- 
nel between Scotland and Ireland,,^ jmnpntested. Pretty 
much in the same category were the llP^traits, forming the 
entrance to the Baltic, the Gi*eat and- the Little Belt, and 
the Sound, so long ns the two shor^bclbnged to the Crown 
of Denmark (6) ; the straits of Mes^a (i7 Faro difMessina, 
f return Sinilum), once belonging to the Kingdom of tlic 
Sicilies ; the straits leading to the Black Sea, the Dardanelfes 
and Hellespont ; the Thracian Bosphorus, belonging to the 
Turkish Empire (c). To narrow seas which flow between 
separate portions of the same kingdom, like the Danish and 
Turkish straits, or to other seas common to all nations, like 

dieere possit.) Sinus quoqne mans regidariter pertinere ad cum po- 
pulum, cidns torris isto ambitur; neque minus freta. Quod si autciu 
diverei populi fretum, aut sinum accolant, eorum impuria pro iatitudino 
terranun ad medium usrj[ue ejusdem iwvtinero intelligentur; nisivelp’r 
couTentionem indivisim id imperium contra e.\.terAs exercero, ipgos antem 
promiscuu inter se isto requore uti placnerit; yel aiicui soli in totum 
istnm nnum ant fretum sit doraiuium qiuesitum ex pacto, reliquoruui 
concessionc tacita, jure nctorim, aut quia is prior ad id mare sedes fiserat, 
idque statim totiuu occupaverat, et contra adversi littoris accolam actus 
imperii exercuerat. Quo cosu tnmeu nihilominus rcliqui sinus aut fruii 
nccolte suorum quisque portuum, tractusqne littoralia doniini esse intelli- 
ftentur.” — Ihiff&idoi^f de Jure Nat. et Gent. 1. iy. c. y. s. 8. 

ib) SeMetfel, S^aatsrecht Diinemarks, p, 359. Vide supra, § clxzix. 

(c) Martens, 1. ii, c. i. s. 41, Des Mere a^acentes. 

Grotius, 1, ii. c. iii. s. 13, 2 : Videtur autem imperium in maris por- 
tionem eadem rationo acqniri qua iiupcria alia, id est, ut supra diximiis, 
ratione personarum et ratione territorii. Itatione personarum, ut si 
claseis, qui maritimus est exerdtus, aliqno in loco maris se hobeat : 
ratione territorii qnatenus ex terra cogi possuut qui in proxima moris 
parte versantur, nec minus qnam si in ipsa terra reperirentur.’' 

Wkeatufiis Hist. pp. 677, 683, 686, 687. The peculiar law and history 
of the Dardanelles and Bosphorus will he found discussed later in connec- 
tion with the Black Sea, § ccy<r. 



STBAITS— FISHERIES. 


265 


the straits of Messina, and perhaps the Si George’s Channel, 
the doctrine of innocent use is, according to Vattel, strictly 
applicable (d). Hbw far this doctrine is sound to the extent 
to whicli it is cafricd by this jurist has been already con- 
, gidcrcd in the matter of liters. 

61^1602, Queen Elizabeth sent a special embassy to 
DenmarlC) object the general adjustment of 

tho^rclations bctj^a 4^e tAvo countries. 

In the instrucrall^given to the ambassadors, the prin- 
ciples erf International LaAv, Avith respect to the subjects 
treated of in this dfeap^r^ are. laid doAvn with the perspicuity 
and pr£H®rion which might be expected from the learning and 
fljlUity^ both of the monarch and her counsellors ; — 

And you shall further declare that the Lawe of Nations 
‘^alloweth of fishing in the sea everywhere; as also of using 
“ports and coasts of jJrinccs in amitic for traffique and 
“ avoidinge danger of tempests; so that if our men be barred 
“ thereof, it should be by some contract. We acknowledge 
“ none of that nature ; but rather, of conformity Avith the 
“ LsAve of Nations in these respects, as declaring the same 
“ for the removing of all claymo and doubt ; so that it is 


{tl) Vattel, dea DSiroila en parlteidier, 1. i. c. xxiii. s. 203 : “ II faut 
leinarquer on particulier, a Tegard dea diUvoiU, quo quaud its servent & 
la commuaicalion do deux mors dont la navigafion est coinuiune a toutes 
Ics uatious, ou d plusiours, celle qui poss&do le detroit ne peut y refuser 
passage aux auti-es, jwurvu quo ce passage soit innocent et sans danger 
pour olio. En le refusant sans juste I’oison, elle priverait cette nation 
d un avantago qui lour est occordo par la nature : et encore un coup, le 
droit d’un tel passage est un re?te do la coimnuuion primitive. Seulenient 
lo soin de sa propre sdrote autoriso le maitre du detroit & user de certainos 
prtScautions, 4 exiger des fornialitds, dtahlies d’ordinaire par la coutume 
des nations. II ost encore fondd a lover nn droit modiquo sur los 
vais^ux qui pasgont, soit poui’ I'incomniodild qu’ils lui cansent en 
lobligeant d’dtro sur ses gardes, ^oit pour la sfiretd quil lorn* procure en 
Ics prot^geant cbntro lours enneniis, en dloignant les pirates, et on se 
chatgeant d'entretenir des fanaux, des halises et autres choses luScessaircs 
an lalut des naAigatours. O’est ainsi que le roi de Danemai'k exige un 
P^lgc au ddtroit du Sand. I’areils droits doh’ent 6tre fondds sur los 
Mcmes raisons et soumis anx m^mos rdgles qne les pdages dtablis sur 
terre, on sur use rivifere.” - 



266 


INTERNATIONAL LAW. 


“ manifest, by denying of this Fishing, and much more, for 

spoyling our subjects for this respect, we have been injured 
** against the Lawe of Nations, express^ declared by con- 
“ tract, as in the aforesaid Treaties, and the. King's own 

letters of *85. 

'‘And for the asking of licence, if our predecessors 
“ yelded thei'eimto, it was more than by Lawe of Nations 
" was due; — yelded, perhaps, upon some special consideration, 
“ growing out of use, it remained due by the Lawe of 
" Nations, what Avas othenvise duo before all contract ; 
" Avherefore, by omitting licence, it cannot be concluded, iu 
“ any case, that the right of Fishing, due by the Lawe of 
“ Nations, faileth ; but rather, that the omitting to require 
“ Licence might be contrarie to the eontract, yf any such 
“ had been in force, 

‘‘ Sometime, in speech, Denmark claymeth propertie in 
“that Sea, as lying between Norway and Island^ — both 
“ sides in the dominions of cure loving brother the Mng ; 
“ supposing thereby that for the propertie of a whole sea, 
“ it is sudicient to have the hanks on both sides, as in rivers. 
“ AVhereunto you may answere, that though property of sea, 
“ in some small distance from the coast, maie ycild some 
“ oversight and jurisdiction, yet use not princes to forbid 
“ passage or fishing, as is well seen in our Seas of England, 
“ and Ireland, and in the Adriatickc Sea of the Venetians, 
“ where Ave in ours, and they in theirs, have propertie of 
“ command ; and yet neither Ave in ours, nor they in theirs, 
“ otfer to forbid fishing, much lesse passage to ships of raer- 
“chandke; the which, by Lawe of Nations, cannot be 
“forbidden ordinarilie; neither is it to be alloAved that 
“ propertie of sea in Avhatsoever distance is consequent to 
“ the banks, as it hapneth in small rivers. For then, by 
“ like reason, the half of every sea should be appropriated to 
“ the next bank, as it hapneth in small rivers, where the 
“ banks are proper to divers men ; whereby it would follow 
“ that noc sea were common, the banks on every side being 
“in the propertie of one or other; wherfore there re- 



STRAITS — FISHERIES. 


267 


« niaineth no colour that Denmarke may claim any propcrtic 
<< in those seas, to forbid passage or Hshiiig therein. 

“You may thelfefore declare that we cannot, wdth our 
“dignitie, yeld that our subjects be absolutelie forbidden 
“ those seas, ports, or coasts, for the use of fishing negotia- 
“ tion and safetie ; neither did we ever yeld anie such right 
“ to Spaine and Poriiujull, for the Indian Seas or Havens ; 
“ yet, yf our good brother the king, upon spcciall reason, 
“ nmie desire that we yeld to some renuinge of licence, or 
“ that some speciall place, ui)on some speciall occasion, be 
“ reserved to his particular use, in your discretion, for amitic 
“sake, you may yeld thereunto; but then to define the 
“ manner of seking licence, in such sort as it be not preju- 
“ diciall to our subjects, nor to the effect of some sufficient 
“ fishing, and to be rather caried in the subject’s name, than 
“ in ours, or the king’s ” {e). 

CXC. The alliances contracted between the United Pro- 
vinces of the Netherlands ivith the city of Lubeck in 1613, 
Avith Sweden in 1614 and 1640, and with the Hanseatic 
towns in 1615 and 1616, Avere all directed against the 
exlraoiilinary pretensions of the Danish Crown, 

Hut in move modern times these pretensions, iliougli 
extravagant enough, have been limited to the right of ex- 
cluding foreigners, not only from all conuncrcc ivith Iceland 
and the Danish portion of Greenland, but from fishing within 
fifteen miles of the coast of Iceland. 

The firat ordinance of the kind was put forth by Denmark 
on April 16, 1636, and pointed at Great llritaiu; in 1682, 
it was renewed and confinned; again on May 30, 1691; 
again on May 3, 1723; and again on April 1, 1776. 

With respect to Greenland, the first prohibition to fish 
appears to have been issued on Febi’uary 16, 1691. This 
was pointed against the Hanseatic toAvns. By a Treaty 
concluded on August 16, 1692, the city of Hamburg ob- 
tained the right of navigation and fishiug in Davis’s Straits. 


(e) JRymer, Fad. t. xvi. pp. 4.33-4. 



268 


INTERNATIONAL LAW. 


By Royal Edicts in 1751, in 1758, and in 1776, the 
commerce of unprivileged foreigners witli Greenland was 
strictly forbidden. 

CXCI. In these prohibitions there was no violation of 
the strict law, however they might offend the usual comity 
of nations. But the validity of the prohibition to fish Avithin 
fifteen German miles of the shore of Greenland and Iceland 
was strictly denied by England and Holland, Avho adhered 
to the usual limit of cannon-shot from the shore. 

CXCII. In the year 1740, a Danish man-of-Avar seized 
upon several Dutch vessels, alleged to be found navigating 
and fishing Avithin the forbidden limits. They Avere taken 
to Copenhagen, tried and condemned in the Court of Admi- 
ralty of that capital. This act led to a vehement remon- 
strance on the part of the Dutch (/). 

The States General, in a Resolution of Apiil 17, 1741, 
laid doAvn three distinct propositions, of Avliich the substance 
was — 

1. That the sea Avas free ; and that it was competent to 
every one to fish in it in a proper manner, pourou (pCH 

ne fosse pas tTune manure indue f which they maintained 
could not be predicated of fishing within four German miles 
of the coast, inasmuch as Denmark might make such a 
Municipal prohibition binding on her own subjects, but 
could not convert it into an International obligation. 

2. That' this right Avas fortified, in the case of Holland, by 
several Treaties with Denmark. 

3. That they were in iK)Ssession, and had long been so, of 
the right in question. 

The Danish Government denied all these positions, Avitli 
reference to the particular sea. 

1. “Les rois de Danemark,” they said, “ Norvege, etc., 
“ont joui depuLS un temps immemorial des pleins effets 

d’uno juste possession dans la mer du Nord ” (g). That, 

(/) Martens, Causes calibres, t. i. p. 359. 

[g) Ibid. t. i. p, 302. 



SIBAITS — FISHERIES. 


269 


possessing this “domination juste et inmemoriale^' they 
were, on the autlioiity of Grotius, entitled to the exclusive 
fishery (A). 

2. They went at length into the alleged Treaties, and 
drew from them a contrary inference. 

3. They denied the possession of the right by the Dutch ; 
alleging that clandestine acts, punished as soon as discovered, 
could not be construed as possession, and that none others 
could be shown. 

The dispute came to no legal termination. The crews of 
the seized ships Avere given up, but neither the ships nor 
their cargoes. In 1748 the Dutch sent ships of Avar to 
protect their merchantmen. Denmark threatened to make 
AA’ar, but did not. 

CXCIII. In 1776 the strict provisions of the Danish 
GoA'ernment for prohibiting all foreign nations from carry- 
ing on any commerce with Greenland gave rise to disputes 
between Denmark and Great Britian, and between Denmark 
and Holland, with respect to the seizure of an English bri- 
gantine and two Dutch vessels for alleged violation of these 
provisions, and their condemnation in the Danish Court of 
Admiralty. In both cases the vessels Avere, at the application 
of their respective Governments, restored ; but all claims for 
compensation by Avay of damage Avere steadily refused, as it 
Avas said that the vessels had been legally condemned by a 
proper tribunal (i). The Dutch on this occasion protested 


(A) Martera, Causes cfiH-hrrs, t. i. pp. 393-4. 

(t) E.\tract from letter of lianish Government to the Ilritish ^linister 
•It Oopenliajren : — 

‘^lleponso du conite do Bernstorff & la note pr(-c<5denle, du 10 oe- 
tol>re 1770.’^ — “ On a I’honucur de repondvo a la nolo irniii«o par 51. do 
baval en date du 7 ootohre 1776, quo la demande du dddoinningeruent 
du S. Kidder, ineuant le vaisseau le Tl^ulsu}, pouvait avoir Hmi, taut 
qu’il dtait douteux si sa saisio dtait Idgale, on si die no Futait pa.s ; in.iisi 
qu elle n’cBt plus admissible selon la nature de la chose et les usages gi.'- 
luSralomcnt re^us do toAites les puissances dc I'Europe, des qu’uue sentence 
a 6te prononedo par un tribunal compdtent a ddeidor ce pdnt, et dcs 
quun^'iiusseau a did Idgalomont coudamnd etddclord confiscable avee sa 
cargaison. S. M. est sftre d’avoir dound la pieuve la moins Equivoque et 



2^0 


INTEENATIONAL LAW. 


against the Danish pretensions with respect to Davis’ Straits 
and the Greenland fisheries (jf). 

CXCIV. Great Britain has never been remiss in main- 
taining the rights of her fisheries. The NeAvfoundland 
fisheries were the subject of careful provisions in the Treaties 
of Utrecht and Paris, 1763 (A); and were in 1818 regulated 
by a Convention between Great Britain and the United 
States of North America (/). 

CXCV. Tlie language of the Article of the Convention 
was, that “ whereas differences have arisen respecting the 
“ liberty claimed by the United States, for the inhabitants 
“ thereof to take, dry, and cure fish on certain coasts, bays, 
“ harbours, and creeks of his Britannic Majesty’s dominions 
“in America, it is agreed between the high contracting 
“ parties, that the inhabitants of the said United States shall 
“ have for ever, in common with the subjects of his Britannic 


la luolns ordinaire do son amitid pour H. M. Tiiitanniquo, en arrutanl 
reX(?ciiiion et reflet d’un arret doninS en I'aveiir de la conipaguie de 
Groenland.” — Martens, Canscs (.clebirs, t. ii. pp. 131-2. 

(J) Extract from the letter of the 1 hitch Minister at C'opeuhagron to 
Danish Goverainoiit:— 

“JIais coiumc veritahlement cettc aflaire cst d’uue importance! giiiicrale 
pjUT toiites Ics pui.ssances iiitercssdcs dans la pechc de Groenland ct da 
detroil do Davis, LL. III!, PI*, se verraient obligdes d’en foire unc cause 
commune avec ccs jndwauees, et de ddfendre et protdger le droit indls- 
putahle de toutes les nations de pouvoir naviguer et pe^her libremeiit par 
toutesles raers oiivevtes, les detroiis, et Icshayes, et en particulier colui 
de lours siijots, qiil de temps iinineiuorial out dte en possession d’user dc 
CO droit siir les cotes do Grocnlmid, dans lo detroit do Davis, et noinnitV 
ment aussi dans k kiyo dc Disco.” — Ibid, pp. 1.39- 40. 

Se<!, too, dioinites between England, Denmark, and Tlollaud, 1770; 
to the Iceland Ikhcrics, 1700, between Denmark and Holland, ib. t. i. i 
os to I'inkml, Jlefflers, 140, n. o ; Orlalmi, JHpl. de la Mer, i. 170; as to 
the Zuj’der Zee, The Twee (hbrwders, 3 C. R'h. Adm. Itep. p. 3.50. 

(A) Kwh, Hist, des Tr. i. 200, 302. 

Art, 13 of the Treaty of Utrecht. 

Art. 6 of tlm. Treaty of Pam. 

(1) The line of demarcation between the rights of Ashing of English 
and French subjects in the British Ohanuel was ekboratoly deAned by 
the Treaty of August 2, 1889 . — De Martens et de C, iv. 001. 

De Martens et de C. iii. .391. 



fisTHAlTS — FlSlIEltlES. 


271 


** Majesty^ the liberty to take fish of every kind on that part 
« of the southern coast of Newfoundland which extends from 
“Cape Kay to the Kamean Islands, on the western and 
“ northern coasts of the said Newfoundland, from the said 
“ Cape Kay to the Quirt>on Islands, on the shores of the 
“ Magdalen Islands, and also on the coasts, bays, harbours, 

“ and creeks, from Mount Joly, on the southern coast of the 
“ Labrador, to and through the Straits of Belle Isle, and 
“ thence northwardly indefinitely along the coast, without 
“ prejudice, however, to any of the exclusive rights of the 
“ Hudson’s Bay Company ; and that the American fishermen 
shall also have liberty for ever to dry and cure fish In any 
“ of the unsettled bays, harbours, and creeks of the southeni 
“ part of the coast of Newfoundland, here above described, 
“ and off the coast of Labrador ; but so soon as the same, or 
“ any portion thereof, shall be settled, it shall not be lawful 
“ for the said fishermen to dry or cure fish at such portion 
“ so settled, without previous agreement for such purpose 
“with the inhabitants, proprietors, or possessors of the 
“ ground. 

“And the United States hereby renounce for ever any 
“ liberty heretofore enjoyed or claimed by the inhabitants 
“ thereof to take, dry, or cure fish on or within three marine 
“ miles of any of the coasts, bays, creeks, or harbours of his 
“ Britannic Majesty’s dominions in America not included 
“within the above-mentioned limits. Provided, however, 
“ that the American fishermen shall be admitted to enter 
“ such bays or harbours for the purpose of shelter and of 
“repairing damages therein, of purchasing wood, and of 
“ obtaining water, and for no other purpose whatever. But 
“ they shall be under such restrictions as may be necessary 
“ to prevent their taMng, drying, or curing fish therein, or in 
“any other manner whatever abusing the privileges hereby 
“ reserved them ” (m). 

CXCVI. It appears that these provisions had not been 


(m) Anwmt Met/, vol. xciv. PP* 295-C. 



272 iNTERNATIONAL LAW. 

strictly observed by tbe subjects of the United States, and 
that in 1849 coniplaints were made by the Legislature of 
Nova Scotia to the British Crown, who took the opinion of 
the Law officers as to the tnie construction of the -/Article. 
This opinion was, that, “ by the terms of the convention, 
“ American citizens were excluded from any right of fishing 
“ within three miles from the coast of British America, and 
“ that the prescribed distance of three miles is to be measured 
from the headlands, or extreme points of land, next the 
“ sea or the coast, or of the entrance of bays or indents of the 
“ coast, and that consequently no right exists on the part of 
“ American citizens to enter the bays of Nova Scotia, there 
“ to take fish, although the fishing, being within the bay, 
“ may be at a greater distance than three miles from the 
" shore of the bay, as we are of opinion that the term ' head- 
“ land ’ («) is used in the Treaty to express the part of the 
‘Hand Avc have before mentioned, including the interior of 
“ the bays and the indents of the coasts ” (a). 

The neglect of these provisions by the subjects of the 
United States still continued, and in 1852 British mcu~of-war 
w’erc sent to protect the fisheries and seize the boats which 
violated the Treaty. This act of the British (rovernment 
created a great excitement in the United States, though It 
does not appear that the legality of the construction of the 
Article vras impugned; but Mr. Webster insisted on the 
inconvenience to the subjects of the United States, and on 
the want of comity shown in its sudden enforcement after 
many years (p) of an opposite practice (y). A temporary 
adjustment was effected by a Treaty of June 5, 1854 — the 


(w) Tbe term “hendland” liowever, does not occur in the Treftlj'- 
The Law officers probably gave Iheiv opinion on a statement of tlw Colo- 
msts in which tbe word did occur. My attention was drawn to this 
strange fact by Mr. A ddison Thomas in 1864, after tbe publication of the 
first edition of this work. 

(o) Annual Jleff. vol. xciv. (1852), pp. 20C-7. See, too, Proadent 
Illmore’s Annual Message, 290. 

(p) Twenty-five it is said by Preadent Fillmore. 

(g) Annual Reg. for 1862, voL xdv. pp, 205-800. 



STBAiTS— PI81IBU1E8. 273 

Keciprocity Treaty already mentioned. It gave to citizens 
of the United States, in addition to their rights under the 
Treaty of 1818, tho right to take fish, except shellfish, on 
the sea coasts and shores, and in the bays, harbours, and 
‘‘ creeks of Canada, New Brunswick, Nova Scotia, and Prince 
« Edward’s Island, and of the several islands thereunto ad- 
jacent, withou t b^ng restricted to any distance from the 
“ shore,” with permission to land for the purpose of drying 
nets and curing fish. Corresponding rights were given to 
British subjects to take sea fish and to Lmd and dry nets on 
the coast of the United States north of latitude 36 deg. N. 
The Treaty did not embrace the salmon and shad fisheries, 
or the fisheries at the mouths of rivers. But we have al- 
ready observed that the United States, using the power 
given them by the Treaty, put an end to it in 1865 (r). 

One of the provisions of the Treaty of Washington of 
May 1871 established a tribunal of Arbitrators to award 
upon the claim of Canada to cumpensatioii in respect of her 
fisheries from the United States (.»). The Halifax Fislicry 
Commissioners awarded to Canada as a compensation five 
and a half millions of dollars. The American Commissioner, 
however, dissented from the award, aiid his dissent was the 
more important, because there was no special provision, as 
there was with regard to the Geneva arbitration, that the 
award of the majority should suffice. It was at one time 
uncertain what the United States would do in consequence 
of this omission : but in 1878 Congress passed a law pro- 
viding fcT the payment of the indemnity. 

(r) See Sana’* li'AnUrni-, n, 110, p. 20C ; Latvmwc’* J[7ieaim. 

Seeue de* Seux Mmdetf tom. xvi., Nov. 1874, contains an aUo 
article on Leg Seehene* do Terre Neuve et leg Traitee. 

(«) Soe Paper* rdatinp to the Treaty of Wasdangton, published bv tlie 
American Government. Wosbingtou 1872. 5 vols. 


VOL. I. 



274 


INTERNATIONAL LAW. 


CHAPTER VIII. 

PORTIONS OP THE SEA. 

CXC VII. Though the open sea be thusincapableot* being 
subject to the rights of property, or jurisdiction, yet reason, 
practice, and authority have firmly settled that a different 
rule is applicable to certain portions of the sea {a). 

CXCVIII. And first with respect to that portion of the 
sea which washes the coast of an independent State. V arious 
claims have been made, and various opinions pronounced, at 
different ejiochs of history, as to the extent to which terri- 
torial property and jurisdiction may be extended. But the 
rule of law may be now considered as fairly established — 
namely, tliat this absolute property and jurisdiction docs 
not extend, unless by the specific provisions of a Treaty {b) or 
an unquestioned usage, beyond a marine league (being three 
miles), or the distance of a cannon-shot, from the shore at low 
tide ; — “ quousque c terra iinperai’i potest,” — “ quousque 
*‘tormenta exploduntur,” — "terrae dominium finitur uhi 
“ finitur armornm vis,” — ^is the language of Bynkershoek (c). 
“ In the sea, out of the reach of cannon-shot” (says Lord 
Stowell), “ universal use is presumed.” This is the limit 

(«) Qmther, t. ii. 8. xxriii. p. 48 : jgiigeuthutu und Ilerrscliaft 
Meeres an den Kiisten.” "" 

Hofiers, 1. Bnch, 8, Ixxvi. p. 141: “ Scliuteveclite uher die Kiisten- 
gewasser." 

brtdan, Dipl, de la Mer, t. i. 1. ii. c. viii. : “ Mer territoiiale." 

Kmi^s Ckmmaitaries, vol. i. s. xxvi. p. 26. 

(6) Valin, Ordonriance de la Manne, 1. v. tit i. p. 087 : "De 1ft Liberia 
de la PSclie,” conttdns a full dissertation on this subject, 

Kluher, s. 130, n. «. 

(c) Queetdonfis Juris Ihtbliri, cnp. viii. 



POBTIONB OF THE SEA. 


275 


fixed to absolute property and jurisdiction ; but the rights 
of independence (d) and self-preservation in times of peace 
have been judicially considered to justify a nation in pre- 
venting lier revenue laws from being evaded by foreigners 
beyond this exact limit ; and both Great Britain and the 
United States of North America have provided by their 
municipal law against frauds being practised on their re-' 
venues, by prohibiting foreign goods to .be transhipped 
within the distance of four leagues of the coast, and have 
exercised a jurisdiction for this purpose in time of peace. 
These were called the Hovering Acts (c). 


(rf) The Ijms, 2 Dodson Adm, Hep. p. 245. 

The Tioee Gebroeders^ 8 C Rob. Adm. Rej). p. 339, 

Jacobsen, Seerecld, pp. 686-690. 

Si quelque vaisseau de Tune ou de Tautre pavtie est eii engagement 
avec un vaisseau appartenant h quelqn’une des puissances chretiennes, h 
Inporteedu canon des chateaux de I’autreilo vaisseau qui se trouvera 
ainsi eii action sera d<Sfendu et prot^gg autant que possible, jusqu’i\ co 
qu’il eoit eu sfiretd.’' — EtatS'-Unis ct Maroc (1787), Ait. 10. — DeMartem 
et de Cusmj, Rec, de Traifis, etc. vol. i. p. 380. 

^'En consequence de ces principes, les bautes parties contractantes 
s*engagent nJciproquenient, eu cas que Tune d’entre (dies fut en guerre 
centre quelque puissance que ce soit, de ii’attaquer jamais les vaisseaiix 
de ses ennemis que Jms de la portee du canon des cot vs de son aUU ^^ — 
France et Rtissie, Art. 27, ibid. p. 306. (This treaty was only entered 
into for twelve years.) 

Aucune des deiLX parties iie soutfrira que le vaisseau ou effets appar- 
tonant aux sujets ou citoyens de Tautre, sowmt pris a une portee de canon 
de la cote, ni dans aucune des baies, riviei-es, ou ports de leurs territoires, 
par des vaisseaux de guerre ou autrea, ayant lettres de luarque de prince, 
r(?publiquo ou Etat, quels qu’ils puisseut ctre. Mais dans le cas oii cela 
amverait, la partie doiit les droits tervitoiiaux auraiont dtd ainsi vioK%, 
fera tous les efforts dont elle est capable pour obtenir de roffenseiir pleino 
et entiere satisfaction pour le^isscau ou les vaisseaux ainsi pris, soit 
que ce soient des vaisseaux de'^en'e ou doanaviresmarchanda.” — Ftats- 
Unis d! AmMque et Orande-Bretagne, Art. 25. — De Martens et de Cnmj, 
Rec, de Traites, vol. ii. p. 92. 

(0 0 Qeo. ni, c. 36, prohibited foreign goods from being transhipped 
within four leagues of the coast without pavmout of duties. The 
American Act of Congress, 1799, March 2, ss‘2r>, 26,27, 99, contains 
the same prohibition, and their Supremo Court has declared this reguhi- 
^n to be founded upon International Law. — Church v. Hubbards, 2 
Craneh Reports, p. 187.— Louis, 2 Dodson Adm. Rep. 246-6. This 

T 2 



276 


INTERNATIONAL LAW. 


Neveriheless, it cannot be maintained as a sound propo< 
sition of International Law that a seizure for purposes of 
enforcing municipal law can be lawfully made beyond the 
limits of the territorial waters^ though in these hovering 
cases judgments have been given in favour of seizures made 
within a limit fixed by municipal law^ but exceeding that 
which has been agreed upon by International Law. Such 
a judgment^ however, could not have been sustained if the 
Foreign State whose subject’s property had been seized 
had thought proper to interfere. Unless, indeed, perhaps, 
in a particular case, where a State had put in force, or at 
least enacted, a municipal law of its own, like that of the 
Foreign State under which its subject’s property had been 
seized. It is at least quite intelligible why such a State 
would not interfere on behalf of its subject. My observa- 
tion does not deny to the neutral, in time of war, the right 
to complain of and possibly to prevent the hovering of belli- 
gerent ships so near her coasts and ports as manifestly to 
menace and alarm vessels homeward or outward bound. 
This is a question which will receive further consideration 
when the relations of States in time of war come under dis- 
cussion. The limit of territorial waters has been fixed at a 
marine league, because that was supposed to be the utmost 
distance to which a cannon-shot from the shore could reach. 
The great improvements recently effected in artillery seem 
ito make it desirable that this distance should be increased, 
but it must be so by the general consent of nations, or by 
Specific treaty with particular States (/). 

CXCVIIIa. In tlie year 1860 an English ship ran down 

case will not be found on examination ^to support the lawfulness of a 
seizure beyond the marine league, though often cited for this purpose.— 
Waite's American State Papers, 1-75. 

Vide post, 8. cc. as to the Kin^s Chanibers. The present English law 
on the subject is contained in the Customs Consolidation Act, 1876, 80 
and 40 Viet. c. 86, ss. 63, 134, 138> 147, 179, 181, 182, 189, 229. 

{f) Hudson V. Guestin', 4 Craneh, 293, and 6 Cran<!h,2Sl. ' Notaisily 
reconcilahle with Pose v. Himely, 4 Craneh, 241. Demis Wheaton, 
p. 180, n. 108. 



PORTIONS OP THE SEA. 


277 


a foreign ship within three miles of the English coast ; the 
owners of the foreign ship brought a suit, and obtained 
judgment against the English vessel, the owners of which 
then filed their bill to obtain the benefit of the limitation of 
liability prescribed by the Merchant Shipping Act, 1864. 
It was decided by Vice-Chancellor Page Wood, after a very 
able and learned argument, that these provisions applied (g). 

CXCVIIIb. In the recent case (1876 a.d.) of Regin a 
V. Kevn (A), the prisoner was a foreigner in command of ai 
foreign ship on a voyage from one foreign port to another.! 
Whilst passing within three miles of the English coaslJ 
his ship ran into a British ship and sank her. A passenger! 
on board the British ship was drowned, and the prisonerj^ 
having been indicted at tlie Central Criminal Court, waa( 
found guilty of manslaughter. The question whether that 
court had jurisdiction was reserved for the Court for Crown 
Cases Reserved. After the case had been twice argued, it 
was holdcn by a majority of one (i), that the Central! 
Criminal Court had no jurisdiction to try the prisoner for \ 
the offence charged. The whole of the majority rested tlieir* 
decision on the ground that prior to 28 Hen. VIII. c. 16, 
the Admiral had no jurisdiction to try offences by foreigners 
on board foreign ships, whether within or without the limitj 
of three miles from the English coast ; that that statute and^ 
the subsequent ones only transferred to the common law 
courts and the Central Criminal Court the jurisdiction 

C<?) The Oeneral Irm Screw Collier Co. v. Schurmans, 1 Johnson and 
Seimnimf Bep, p. 180. These sections have been superseded by other 
provisions in the Merchant Shipping Act Amendment Act, 1802. 

(A) Law Jteports, 2 Bx. JHv. 63. 

(0 The majority consisted of Oockbuni, O.J., Kelly, C.B., Braims'ell, 
J.A., Lush and Field, JJ., Sir R. Phillimore and Pollock, B.; the 
dissentients were Lord Ooleridge, O.J., Brett and Amphlett, JJ.A., 
Grove, Denman, and lindley, JJ. Archibald, J., agreed with the 
majority, but died before the judgment was delivered. 

See, for a comment upon this judgment, p. 21 of the Ai^nnnsnt of Mr. 
R H. Braa on behalf of the United States before the Halifax Fisheiy 
Oomt^ioners p. 287). In this argument tho reasoning of the 
luajonty is approved and adopted. 



278 


INTEBNATIONAL LAW; 


formerly possessed by the Admiral ; and that^ therefore, in 
the absence of statutory enactment, the Central Cnminal 
Court had no power to try such an offence. 

Sir F. Kelly and the author of these Commentaries relied 
also on the ground that, by the principles of International 
Law, the power of a nation over the scawitliin three miles of 
its coasts is only for certain limited purposes; and that 
Parliament could not consistently with those principles ap- 
ply English criminal law within those limits. 

The wiiter of these pages summed up in his judgment 
the conclusions which appeared to him to result from the 
various authorities referred to, as follows {j ) 

“ The consensus of civilised independent States has recog- 
“ nized a maritime extension of frontier to the distance of 
“ three miles from low-water mark, because such a frontier 
“ or belt of water is necessary for the defence and security 
" of the adjacent State. 

“ It is for the attainment of these particular objects that a 
dominium has beengranted over this portion of the high seas. 
" This proposition is materially different from the proposi- 
tion contended for, namely, that it is competent to a State 
“ to exercise within these waters the same rights of juris- 
“ diction and property which appertain to it in respect to its 
” lands and its ports. There is one obvious test by which 
“ the two sovereignties may be distinguished. 

“ According to modern International Law, it is certainly 
a right incident to each fStatc to refuse a passage to 
“ foreigners over its teiTitory by land, whether in time of 
“ peace or war. But it does not appear to have the same 
'‘right with respect to preventing the passage of foreign 
“ ships over this portion of the high seas. 

“ In the former case there is no jits trnnsiius-, in the latter 
case there is. 

“ The reason of the thing, that is, the defence and security 
‘ of the State, does not require or warrant the exclusion of 


(j) Law Reports, 2 Ex,. Div, p, 81. 




PORTIONS OF THE SEA. 


279 


« peaceable foreign vessels from passing over these waters, 
'<and the custom and usage of nations have not sane- 
« tioned it, 

“ Consequences fraught with mischief and injustice might 
“ flow from the opposite doctrine, which would render ap- 
“ plicablc to a foreign vessel while in itinere from one port 
« to another, passing over these waters, all the criminal law 
“of the adjacent territory. No single instance has been 
“ brought to our notice of the practical exercise by any 
“ nation of tliis jurisdiction. 

“ The authorities cited in order to show that a foreign 
“ vessel is subject to the laws of the foreign port which she 
“ enters appear to me inapplicable to the present case. 

" A foreign merchant vessel going into the port of a foreign 
“State subjects herself to the ordinary law of the place 
“ during the period of her commorancy there ; she is as much 
“ a suhditus temporaneus as the individual who visits the in- 
“ tenor of the country for the purposes of pleasni'c or busi- 
“ ness. 

“ It may be that the foreign State, influenced by con- 
“ siderations of public policy or by treaty obligations, chooses 
“ to forego the exercise of her law over the foreign vessel and 
“ crew, or exercises it only when they disturb the peace and 
“ good order of the port. This is the course which France 
“ has usually pursued ; an illustration of it is furnished by 
“the case cited from Dalloz (,/am. Gen. 1859, ‘Cour de 
“ Cassation,’ pp. 88, 89), the result of which is correctly stated 
“ in the marginal note : — 

“ ‘ Les b^timents de commerce etrangers, stationnaut dans 
“ import frangais, sont soumis 41a juridiction territoriale pour 
ce qui concernc les ddlits entre dtrangers et notamment 
entre gens de I’dquipage, dont la repression n’intdresse pas 
exclusivement ladismpline etl’adniinisti'ation intdrieure du 
“borf.~.((7. i%. 3; Av. Cons. 20, Nov. 1806.) 
ti r * ainsi, surtout, lorsque ces ddlits sont de nature 

a compromettre la tranquillitd du port, ou lorsque I’inter- 
vention de I’autorite locale a dtd r^lamde.’ 



280 


INTERNATIONAL LAW. 


“I cannot entertain any doubt that in this country a 
** foreign sailor^ complaining of the ill-treatrnent of his 
** master en board a foreign ship in an English port, Avould 
be entitled to the protection of an English court of justice. 
“ If) indeed) as has been contended, there be no difference 
“ between the jurisdiction by the adjacent State over vessels 
“ in ports and over passing and commorant vessels, tlien the 
“ whole criminal law of England was applicable to the crew 
“ and those on board the Gennan vessel, so long as she was 
** within a marine league of the English shore. 

“ The consequences of such a position of law appear to 
“ me, especially in the absence of any precedent, sufficient 
“ to render it untenable.” 

CXCVIIIc. In consequence of the decision in this 
case, an Act was passed in the session of 1878 (li), >vhich, 
after a preamble reciting that “ the rightful jurisdiction of 
** her Majesty, her heirs and successors extends and has 
always extended over the open seas adjacent to the coasts 
“of the United Kingdom, and of all other parts of her 
“ Majesty’s dominions to such a distance as is necessary for 
“ the defence and security of such dominions,” and that “it is 

1 “ expedient that all offences committed in the open sea within 
“ a certain distance of the coasts of the United Kingdom 
, “and of aU other parts of her Majesty’s dominions, by 
whomsoever committed, should be dealt with acccording to 
I “ law,” proceeds to enact as follows : — 

“1. This Act may be cited as the Territorial Waters 
1“ Jurisdiction Act, 1878. 

“ 2. An offence committed by a person, whether he is or 
** is not a subject of her Majesty, on the open sea within 
“ the territorial waters of her Majesty’s dominions, is an 
offence within the jurisdiction of the Admiral, although it 
“may have been committed on board or by means of a 
“ foreign ship, and the person who committed such offence 
“ may bo arrested, tried, and punished accordingly. 


(k) 41 and 42 Viet c. 73, 



PORTIONS or THE SEA. 


281 


3. Proceedings for the trial and punishment of a person 
‘‘ Tvho is not a subject of her Majesty, and who is charged 
« with any such offence as is declared by this Act to be 
within the jurisdiction of the Admiral, shall not be in> 
« stituted in any court of the United Kingdom, except with 
“ the consent of one of her Majesty’s Principal Sccre- 
taries of State, and on his certificate that the institution 
<< of such proceedings is in his opinion expedient, and shall 
“ not be instituted in any of the dominions of her Majesty 
“ out of the United Kingdom, except with the leave of the 
“ governor of the part of the dominions in which such pro- 
“ ceedings are proposed to be instituted, and on his certifi- 
cate that it is expedient that such proceedings should be 
“ instituted. 

“ 4. On the trial of any person who is not a subject or 
“her Majesty for an offence declared by this Act to be 
“ within the jurisdiction of the Admiral, it shall not be neces- 
“sary to aver in any indictment or information on such 
“ trial that such consent or certificate of the Secretary of 
“ State or Governor as is required by this Act has been given, 
“ and the fact of the same having been given shall be pre- 
“ sumed, unless disputed by the defendant at the trial ; and 
“ the [iroduction of a document purporting to be signed by 
“one of her Majesty’s Principal Secretaries of State as 
“ respects the United Kingdom, and by the Governor as 
“ respects any other part of her Majesty’s dominions, 'and 
“ containing such consent and certificate, shall be sufiicient 
“ evidence for all the purposes of this Act of the consent and 
“ certificate required by this Act. 

“ Proceedings before a justice of the peace or other magis- 
“ trate previous to the committal of an offender for trial or 
" to the determination of the justice or magistrate that the 
“offender is to be put upon his trial shall not be deemed 
proceedings for the trial of the offence committed by such 
“ offender for the purposes of the said consent and certificate 
“ under this Act. 

“ 5* Nothing in this Act conttdned shall be construed to be 



282 


INTERN AT rONAL LAV. 


“ in derogation of any rightful jurisdiction of her Majesty, 
« her heirs or successors, under the law of nations, or to 
“ affect or prejudice any jurisdiction conferred by Act of 
« Parliament or now by law existing in relation to foreign 

ships or in relation to persons on board such ships. 

“ 6. This Act shall not prejudice or affect the trial in 
“manner heretofore in use of any act of piracy as defined 
“ by the law of nations, or affect or prejudice any law relating 
“ thereto j and where any act of piracy as defined by the law 
“ of nations is also any such offence as is declared by tliis Act 
“ to be within the jurisdiction of the Admiral, such offence 
“ may be tried in pursuance of this Act, or in pursuance 
“ of any other Act of Parliament, law, or custom relating 
“ thereto. 

“ In this Act, unless there is something inconsistent in 
“ the context, the following expressions shall respectively 
“ have the meanings heroin-after assigned to them ; that is 
“ to say — 

“ * The jurisdiction of the Admiral,’ as used in this Act, 
“ includes the jurisdiction of the Admiralty of England and 
“ Ireland, or either of such jurisdictions as used in any Act 
“ of Parliament; and for the purpose of arresting any per- 
“ son charged with an offence declared by this Act to be 
“within the jurisdiction of the Admiral, the territorial 
“waters adjacent to the United Kingdom, or any oUier 
“ part of her Majesty’s dominions, shall be deemed to be 
“ within the jurisdiction of any judge, magistrate, or officer 
“ having power within such United Kingdom, or other part 
“of her Majesty’s dominions, to issue warrants for arresting 
“ or to arrest persons charged with offences committed within 
“ the jurisdiction of such judge, magistrate, or officer. 

“ ‘ United Kingdom ’ includes the Isle of Man, the Channel 
“ Islands, and other adjacent islands. 

“ * The territorial waters of her Majesty’s dominions,’ in 
“ reference to the sea, means such part of the sea adjacent 
** to the coast of the United Kingdom, or the coast of some 
“ other part of her Miyesty’s dominions, as is deemed by 



rORTIONS OF THE SEA. 


283 


" international law to be mthin the territorial sovereignty 
« of her Majesty ; and for the purpose of any offence de- 

dared by this Act to be within the jurisdiction of the 
« Admiral, any part of the open sea within one marine 
** league of the coast measured from low-water mark shall 
** be deemed to be open sea within the territorial watem of 
“ her Majesty’s dominions. 

“ ‘ Gov6rnor,’ os respects India, means the Governor- 
“ General or the Governor of any Presidency ; and where a 
“ British possession consists of several constituent colonies, 
“ means the Governor-General of the whole possession or 
“the Governor of any of the constituent colonies;' and as 
“respects any other British possession, means the officer 
“ for the time being administering the government of such 
“ possession ; also any person acting for or in the capacity 
“ of Governor shall be included under the term * Governor ; ’ 

“ ‘ Offence ’ as used in this Act means an act, neglect, or 
“ default of such a description as would, if committed within 
“ the body of a county in England, be punishable on indict- 
“ ment according to the law of England for the time being 
“ in force. 

“ ‘ Ship ’ includes every description of ship, boat, or other 
“ floating craft. “ ‘ Foreign ship ’ means any ship which 
“ is not a British ship.” 

It is hardly necessary to state that this Statute does not 
affect the general International Law on the subject. 

CXCIX, The rule of the marine league being the 
boundary of the territorial jurisdiction is liable to be 
affected by Treaty. The Emperor of China has conceded 
jurisdiction to the Crown of England over British subjects in 
China; and the Crown, by an Order in Council assented to by 
the Chinese Government, has jurisdiction over British sub- 
jects “ being within the dominions of the Emperor of China, 
** or being within any ship or vessel at a distance of not 
” more than one hundred m iles from the coast of China” {t). 

(0 Papers presented to both Houses of Parliament by command of her 
a^jesty, 1868. ■ VHt 41 ft 42 Viet. c. 07, § 6 ; etpont, cb. tIx. 


284 


INTERNATIONAL LAW. 


CC. Besides the rights of property and jurisdiction 
-within the limit of cannon-shot from the shore, there are 
certain portions of the sea which, though they exceed this 
verge, may, under special circumstances, he prescribed for. 
sMaritimc territorial rights extend, as a general rule, over 
arms of the sea, bays, gulfs, estuaries which are enclosed, but 
Inot entirely surrounded by lands belonging to one and the 
%arae State. With respect to bays and gulfs so enclosed, 
there seems to be no reason or authority for a limitation 
suggested by Martens (m), “ surtout en tant que ceux-ci ne 
“ passent pas la largeur ordinaire des rivieres, ou la double 
“ portee du canon,” — or for the limitation of G-rotius («) 
which is of the vaguest character, — " marc occupari potuissc 
“ ab eo qui terras ad latus utrumque possidcat, etiamsi ant 
“ supra pateat ut sinus, aut supra et infra ut fretum, duin- 
“ modo non ita magna sit pars maris ut non ciun terris cora- 
“ parata portio earum videri possit.” The real ([uestion, as 
Gunther truly remarks, is, whether it be within the physical 
competence of the nation, possessing the circumjacent lands, 
to exclude other nations from the whole portion of the sea 
so surrounded ; or, as Martens declares in his earliest, and 
in some respects best, treatise on International Law, “ Partes 
“ maris territorio ita natura vel arte inclusm ut exteri aditu 
impediri possint, gentis ejiis sunt, cujus est territorium 
“ circumjacens ” (o). To the same effect is the language of 
Vattel : “ Tout ce que nous avons dit des parties de la mer 
“ voisines des edtes, se dit plus particulidrement ct d. plus 
“ forte raison des rades, des bales et des ddtroits,comme plus 
“ capaUes encore d’etre occupes, ct plus importants k la sffretd 
" du pays. Mais jc parle des baies et ddtroits de peu d’etendue, 
“ et non de ces grands espaccs de mer auxquels on donne 
“ quelquefois ces noms, tels que la baie de Hudson, le ddtroit 
“ de Magellan, sur lesquels I’empirc ne saurait s’^tendro, et 
moins encore la propridte. Une baie dont on pent ddfendre 

(m) Lib. il c. i. 8. 40. 

(n) lib. ii. c, iii. s. 8. 

(o) iVtnwE XtNM! fi’mttum, 1. iv. c. iv. 8. 110. 



PORTIONS OF THE SEA. 


285 


» I’entr^e, peut 8tre occup5e et soumise aux lois du souverain; 
(‘il importe qu’elle le soit, puisque le pays pourrait 8t.re 
« beaucoup plus aiscment insultd en cet endroit que sur des 
« c6tes ouvertes aux vents et ^ rimpdtuositd des flots ” (p). 

Thus Great Britain has immemorially claimed and exer- 
cised exclusive property and juiisdiction over the bays or 
portions of sea cut off by lines drawn from one promontory i 
to another, and called f/ie King's Chamber s, And there is 
the high authority of Sir Leoline Jenkins (y ), that vessels, 
even of the enemies of Great Britain, captured by foreign 
cruisers within these Chambers, would be restored by the 
High Court of Admiralty. In time of war (r), at least, the 
Solent, or the portion of the sea which flows between the 
Isle of Wight and the mainland, might, I think, be justly 
asserted to belong as completely as the soil of the adjacent 
shores to Great Britain, 

(p) Vattd, Le Droit, etc. t. i. 1. i. c. xxiii. s. 391. 

(j) life of 8hr Ijedim Jenkins, vol, ii. pp. 727, 783, 756, 780. As to 
King’s dhambers, soo Selden, Mare Qaiutim, cb. 32, in which is n list of 
those Chambers as given by James the First, 1C04. 

(r) I do not think tliat the judgment of the Priv}' Council (18G4) in 
the case of T/te Edipse, 15 Moore’s F, C. Bep, p. 207, allects this propo- 
sition, but I think it right to dte the ^lassnge. (The question in the case 
was whether a collision between a British and foreign vessel in the 
Solent should bo tried by the ordinary Maritime Law or by 17 and 18 
Viet. c. 104.) Their Lordships say : “In our opinion, the statute cannot 
be considered to liave any local application to the ^lent, and to all'ect 
foidgn as well as British vessels navigating within the limits of that 
channel ; and that, even if the statute were binding on all vessels navi- 
gating within a tidal river, which, however, the case of the Fymoord 
(Smh, 374) discountenances, we think that it could not bo locally 
binding within the water of the Isle of Wight and the mainland, and 
that the circnmstauce that tho Isle of "Wight is by local and territorial 
designation to "be deemed a portion of the county of Southampton dotis 
in any degree affect this question. We are of opinion that this collision 
niust be conridered to have taken place on the high seasr, in a place 
where a foreign vessel has a right of sidling without l^ing bound by any 
^ the ^visions of the statutes enacted to govern British ships. This 
being so', it follows tliat the Merchant Shipping Act has no application 
to tto cam, as it has been fully determined that where a British and a 
®kip meet on the high seas tho statute is not binding on either. 
The p^dple, therefore, by which this cose must be decided must be 
found in the ordinary rules of the sea.” 



286 


INTKUNATIONAL LAW. 


GCI. Mr. Chancellor Kent states the claims of the United 
States upon this matter in the following language : — 

** Consideiing the great extent of the line of the American 
coasts, we have a right to claim, for fiscal and defensive 
“ regulations, a liberal extension of maritime jurisdiction : 
“ and it would not be unreasonable, as I apprehend, to as- 
“ sume, for domestic pur{> 08 es connected with our safety and 
" welfare, the control of the waters on our coasts, though 
included within lines stretching from quite distant head- 
“ lands, as, for instance, from Cape Ann to Cape Cod, and 
from Nantucket to Montauck Point, and from that point 
** to the Capes of the Delaware, and from the South Cape of 
Florida to the Mississippi. It is certain that our Qoveru- 
** ment would be disposed to view with some uneasiness and 
“sensibility, in the case of war between other maritime 
“ powers, the use of the w'atei's of our coast, far beyond the 
“ reach of cannon-shot, as cruising ground for belligerent 
“purposes. In 179.3 our Government thought they w'ere 
“ entitled, in reason, to as broad a margin of protected navi- 
“ gation ns any nation whatever, though at that time they 
“ did not positively insist beyond the distance of a marine 
“ league from the seashores ; and in 1806 our Govennnent 
“thought it would not be unreasonable, considering tlie 
“ extent of the United States, the shoalness of their coast, 
“ and the natural indication furnished by the well-defined 
“path of the Gulf Stream, to expect an immunity from 
“ belligerent warfare, for the space between the limit and the 
“ American shore. It ought, at least, to be insisted, that the 
“ extent of the neutral immunity should correspond with 
“ the claims maintained by Great Britain around her own 
“ territory, and that no belligerent right should be exercised 
“ within * the chambers formed by headlands, or anywhere 
at sea within the distance of four leagues, or from a right 
“line from one headland to another.’ In the case of the 
“ B elt which was cruising many miles from the shore 
“ between Cape Henry and Cape Hatteras, our Government 
“ laid stress on the circumstance that she was * hovering on 



PORTIONH OF THE gRA. 


287 


« our coasts ; ’ and it was contended on the part of the United 
StateSjthat they had a right to know the national character 
<< of armed ships in »ich a situation, and that it was a right 
« immediately connected with our tranquillity and peace. It 
« was further observed, that all nations exercised the right, 

« Bind none with more rigour, or at a greater distance from 
“ the coast, than Great Britain, and none on more justifiable 
“ grounds than the United States. There can be but little 
doubt that, as the United States advance in commerce and 
naval strength, our Government will be disposed more and 
« more to feel and acknowledge the justice and policy of the 
British claim to supremacy over the narrow seas adjacent toj 
<< the British Isles, because we shall stand in need of similarj 
“ accommodation and means of security ” (s). 

CCIa. Mr. Dana, in a very elaborate and able argument 
addressed, November 1877, to the Halifax Fishery Com- 
missioners appointed under the Treaty of Washington (<), 
said: — “As to the nature of this right which England 
“claimed in 1818 to exclude us from the three miles by 
“ virtue of some supposed principle of International Law, I 
“ have stated (m) ray opinion upon it ; but your Honours will 
“ be pleased to observe that on that, as on the subject of head- 
“ lands, an essential part of it, without which it can never 
“ be put in execution, there is no fixed international law. 
“ I have taken pains to study the subject, have examined it 
“ carefully since I came here, and I think I have examined 
“ most of the authorities. I do not find one who pledges 
“ himself to the three-mile line. It is always ^ three miles’ 
“ or * the cannon-shot.’ Now, the cannon- shot is the more 
“ scientific mode of propounding the question, because that 
“ was the length of the arm of the nation bordering upon 
“the sea, and riie could exercise her rights so far as the 
“length of her arm could be extended. That was tlie 
“cannon-shot, and that, at that time, was about three 

(») Cmmeniofiegf voL i. pp. 29, 30. (<) Vide eapra, p. 273. 

(tt) Argument of Sit^ard H, Dana, Jr., on behedf qf the United ISttdes, 

«oveinl)er 1877, pp. 18 - 20 . 



288 


INTBEKATIONAL LAW. 


miles. It is now many more miles. We soon began to 
find out that it would not do to rest it upon the cannon- 
“ shot. It is best to have something certain. But inter- 
national writers have arrived at no further stage than this; 
“ to say that it is ^ three miles or the cannon-shot.’ And 
“upon the question, * How is the three-piile. liBio,,to. be 
“determined?’ we find everything utterly afloat and un- 
“ deci3e31' ^ My purpose in makmg these remarks is, in 
“ part, to show your Honours what a precarious position a 
“ State holds which undertakes to set up this right of ex- 
“ elusion, and to put it in execution. The international 
“ law makes no attempt to define what is * coast.’ We know 
“ well enough what a straight coast is and what a curved 
“ coast is ; but the moment the jurist comes to bays, har- 
“ hours, gulfs, and seas, they are utterly afloat — as much so 
“ as tlie seaweed that is swimming up and down the channels. 
“ They make no attempt to define it, either by distance, or 
“ by political or natural geography. They say at once : ‘It 
“ is difficult where there are seas and bays.’ Names will 
not help us. The Bay of Bengal is not national property : 
“ it is not the King’s Chamber ; nor is the Bay of Biscay, 
“ nor the Gulf of St. Lawrence, nor the Gulf of Mexico. 
“ An inlet of the sea may be called a ‘ bay,’ and it may be two 
“ miles wide at its entrance, or it may be called a bay, and it 
“ may take a month’s passage in an old-fashioned sailing-vessel 
“ to sail from one headland to the other. What is to be 
“done about it? If there is to be a three-mile line from 
“ the coast, the natural result is, that that three-mile line-^ 
“ should follow the bays. The result then would be, that a 
“ bay more tlian six miles wide was an international bay ; 
“ while one six miles wide or less would be a territorial bay. 
“ That is the natural result. Well, nations do not seem to 
“have been contented with this. France has made a 
treaty with England saying that, as between them, any- 
thing less than ten miles wide shall be a territorial bay. 

“ The difficulties on that subject are inherent, and, to my 
“ mind, they are insuperable. England claimed to exelude 



BATS. LANDLOCKED SEAS. 


289 


US from fishing in the Bay of Fumiy ; an3 it was left to 
« referees, of whom Mr. Joshua Bates was umpire, and they 
« decided that the Bay of Fundy was not a territorial bay 
*<of Great Britain, but a part of the high seas. This 
« decision was put partly upon its width, but the real ground 
was that one of the assumed headlands belonged to the 
United States, and it was necessary to pass the head- 
land in order to get to one of the ports of the United 
“ States. For these special reasons the Bay of Fundy, 
whatever its width, was held to be a public and in ter- 
“ national bay,” 

This nice question as to jurisdiction over bays came 
before the Judicial Committee of the Privy Council in 
A.D. 1877. Lord Blackburn delivered the judgment. He 
said : — ** Passing from the common law of England to the 
general law of nations, as indicated by the text writers 
** on international jurisprudence, we find an universal agree- 
** ment that harbours, estuaries, and bays landlocked belong 
to the territory of the nation which possesses the shores 
round them, but no agreement as to what is the rule to 
“ determine what is ' bay ’ for this purpose. 

** It seems generally agreed that where the configuration 
“ and dimensions of the bay are such as to show that the 
nation occupying the adjoining coasts also occupies the 
** bay, it is part of the territory ; and, with this idea, most of 
“ the writers on the subject refer to defensibility from the 
“ shore as the test of occupation ; some suggesting, therefore, 
'^a width of one cannon-shot from shore to shore, or three 
miles ; some, a cannon-shot from each shore, or six miles ; ' 
some, an arbitrary distance of ten miles. All of these are; 
“rules which, if adopted, would exclude Conception Bni/\ 
“ firom the territory of Newfoundland ; but also would hav^ 
“ excluded from the territory of Great Britain that part of| 
“ the Bristol Channel which in Beg. v. Cunningham {x) was l 
“ decided to be in the county of Glamorgan, On the others 


■ (.r) Beltt Crown CateSf p. 72. 
VOIi* !• U 



290 


IKTfiBNATIONAL LAW. 


** han(1, the diplomatists of the United States in 1793 
“ claimed a territorial jurisdiction over much more exten- 
“sive bajSj and Chancellor Kent, in his Commentaries} 
though by no means giving the weight of his authority to 
** this claim, gives some reason for not considering it alto- 
** gether unreasonable. 

** It docs not appear to their Lordships that jurists and 

V text writers are agreed what are the rules as to dimensions 

V and configuration, which, apart from other considerations, 
** would lead to the conclusion that a bay is or is not a part 
“ of the territory of the State possessing the adjoining coasts, 
“ and it has never, that they can find, been made the ground 
“ of judicial determination. If it were necessary in this 

case to lay down a rule, the difficulty of the task would 
not deter their Lordships from attempting to fulfil it Ilut 
” in their opinion it is not necessary so to do. It seems to 
** them that, in point of fact, the British Government has 
“ for a long period exorcised dominion over this bay, and 
that their claim has been acquiesced in by other nations, 
" so as to show that the bay has been for a long time occn> 
“ pied exclusively by Great Britain, a circumstance which, 
“ in the tribunals of any country, would be very important. 
“ And, moreover (which in a British tribunal is conclusive), 
** the British Legislature has by Acts of Parliament declared 
it to be part of the British territory, and part of the 
country made subject to the Legislature of Newfound- 
“ land ” (y). 

CCII. In 1822 Russia laid claim to a sovereignty over 
the Pacific Ocean north of the 51st degree of latitude; but 
the Government of the United States of America resisted 
this claim as contrary to the principles of International 
Law {z). 

com. The portion of sea actually occupied by a fleet 


(y) Direct United SUdez Cable Company v. Anglo-Americaa Tdegraph 
Con^pany, L. D. 2 App. Coe. pp. 419-^. 

(a) Afr . Adam^t Letter to tie Rutsian Mimder, March 30, 1822. 



PORTIONS OF THE SEA. 


291 


riding at ancW is within the dominion of the nation to 
which the fleet belongs, so long as it remains there ; that is, 
for all purposes of jurisdiction over persons within the limits 
of thie space so occupied. The like principle is applicable to 
the portion of territory occupied by an army, — a fleet being 
considered as a maritime army (a). 

This proposition is of course not to be considered without 
reference to the place of anchorage: a French fleet per- 
mitted to anchor in the Downs; or an English fleet at 
Cherbourg, would only have jurisdiction over the subjects 
of the respective countries which happened to be within the 
limits of their temporary occupation of the water. Both in 
the case of the fleet and the army, there is, according to the 
theory of the law, a continuation or prorogation of the terri- 
tory to which they belong (A). 

CCIV. The undoubted proposition, that the sea is open 
to the navigation of all nations, does not carry with it 
the further proposition, that it is competent to every indi- 
vidual to navigate his ship without any authority from his 
Government.* 

Every ship is bound to carry a flag, and to have on board! 
ship’s papers (lettres de mer) indicating to what nation she ; 
belongs, whence she has sailed, and whither she is bound, > 
under pain of being treated as a pirate (c). 


(a) “Yideturaatemimpemm in maria portionem eodem ratione acquiri 
ttt imperia alia, id est, ut supra diximtis, ratione peisonarum et ratione 
temtoriL Itatione personarom, ut cUutiit, qtti est maritimus exenitus, 
aliqao in loco mans so habeat: ratione territorii, qnatenns ex terra cogi 
poBBont qui in proxima mans parte versantur, nee minus quam si in ipsa 
Um reperirentur."— 1. ii, c. 3, § xiii. 2. 

. “ classem qum stat in auchoris, earn marls partem cni incubat, 
nderi^ occupasse^ eatenus nempe, quateuus et qnomdiu occupat. Si occu- 
P^verit, tranrit in imperium et dominitun occupantis secundum ea qnie 
msputavi.”— Cap, iii. e. 4, Bunk, de Domini) Maris. 

XE^s, 136. 

723. 

(ft) Vide post, farther ohserrations on the queftion of jurisdicrion. 

(0 “ Qnand on dit que la mer est lihre, on ne s’entend parler que des 
nations, car elle iie I’ost point pour des yairticulierB ; ils ne peuvent en 




r- ■' 


INTEBNATIONAL LAW. 


CCY. With respect to teas entirely enclosed by the 
landyso as to constitute a salt-water lake {Maria clausa; 
mers fermees, tncloses ; BinnenmeerCf gescklossene innere 
I Meere), the general presumption of law is, that they belong 
jto the surrounding territoiy or territories in as full and 
’ complete a manner as a fresh-water lake. The Caspian 
and the Black Sea naturally belong to this class. Uiwn the 
former sea Russia had, by treaty with Persia, the exclusive 
right of navigating with ships of war ; and by the Treaty of 
Hhe Dardanelles, the Black Sea was practically confined to 
Russian and Turkish ships of war (d). 

CCVa. The Treaty^-pf Paris,.. 1856, contained these 
special provisions as to the navigation of the Black Sea : — 
“Art. XI.— The Black Sea is neutralised; its waters 
“ and its ports, thrown open to the mercantile marine of 
“ every nation, are formally and in perpetuity interdicted to 
** the flag of war, either of the Powers possessing its coasts, 
“ or of any other Power, with the exceptions mentioned in 
“ Articles XI V. and XIX. of the present Treaty. 

“Art. XII. — Free from any impediment, the commerce 
“ in the ports and waters of the Black Sea shall be subject 
only to regulations of health, customs, and police, framed 
“ in a spirit favourable to the development of commercial 
“ transactions. 

“ In order to aflPord to the commercial and maritime 
“interests of every nation the security which is desired, 
“ Russia and the Sublime Porte will admit Consuls into 


jouir que sous la sanv^farde de leur gonvernement, et e’est pour ^tablir 
cette sauvegarde qu’on a inslitud les patUltm et les lettres de mer ; la 
snroM a exigd cette zestriction du droit nature! ; et tout batiment navi* 
goant eans pavilion et sans lettres de mer est traitd comme Qn/o>ti<m.‘’— 
Gardeot TrwU de J)i;dtnnatie:, L 406. 

Ortelm, Dipl, de la Mer, t. i. 1. ii. c. ix . — The Louis, 2 Dodson -ddm. 
Dtp. 246-7. 

(d) 2 De Martens et de Ciissy, S99, Art. 6; vide supra, p. 61. 

JBeflers, 140. 

Wieaton's JBist. m, 66T, 



THG BLACK SEA. 


293 


tJieir ports situated upon the coast of the Black Sea^ in 
(* conformity with the principles of International Law. 

" Art. XIII.-r-The Black Sea being neutralised accord- 
« ins to the terms of Article XL, the maintenance or estab^ 
« lishment upon its coast of military-maritime arsenals be* 
comes alike unnecessary and purposeless; in consequence, 
*<his Majesty the Emperor of All the Bussias and his 
** Imperial Majesty the Sultan engage not to establish or to 
‘‘ maintain upon that coast any military-maritime arsenal. 

Art. XIV. — Their Majesties the Emperor of All the 
“ Bussias and the Sultan, having concluded a Convention 
for the purpose of settling the force and the number of 
“light vessels, necessary for the service of their coasts, 
“which they reserve to themselves to maintain in the 
“Black Sea, that Convention is annexed to the present 
“ Treaty, and shall have the same force and validity as if 
“ it formed an integral part thereof. It cannot be either 
“annulled or modified without the assent of the Powers 
“ signing the present Treaty.” 

There was a subsequent Convention between the Em- 
peror of Bussia and the Sultan, limiting their naval force 
in the Black Sea, signed at Paris, March 30, 1856 ; — 

“ In the Xarae of Almighty God. 

“ His Majesty the Emperor of All the Bussias, and his 
“Imperial Majesty the Sultan, taking into consideration 
“ the principle of the neutralisation of the Black Sea estab- 
“Hshed by the preliminaries contained in the Protocol 
“No. 1, signed at Paris on the twenty-fifth of February 
“ of the present year, and wishing, in consequence, to regu- 
“ late by common iq^reement the number and the force of 
“the light vessels which they have reserved to themselves 
“to maintain in the Black Sea for the service of their 
“ coasts, have resolved to sign, with that view, a special 
“ Convention, and have named for that purpose : 

“ His Majesty the Emperor of All the Bussias, the Count 
“Orloff and Baron de Brunnow ; and his Majesty the 



294 


INTISKNATIONAL LAW. 


“ Emperor of the Ottomans, Mouhammed Emin Aali Pasha 
** and Mehemmcd Djemil Bey ; who, after having exchanged 
** their full powers, found in good and due form, have agreed 
“ upon the following Articles : — 

**Art, I. — The high contracting parties mutually en- 
gage not to have in the Black Sea any other vessels of 
** war than those of which the number, the force, and the 
“ dimensions are hereinafter stipulated. 

“ Art. II. — The high contracting parties reserve to 
themselves each to maintain in that sea six steam vessels 
of fifty metres in length at the time of floatation, of a 
“ tonnage of eight hundred tons at the maximum, and four 
** light steam or sailing vessels of a tonnage which shall not 
exceed two huudred tons each.” 

On March 13, 1871, the Treaty of London was concluded 
between England, Germany, Austria, Italy, France, and 
the Porte, in which these States announced that they were 
assembled in order to come to an understanding, in a spirit 
“ of concord, with regard to the revision of the stipulations 
“ of the Treaty concluded at Paris on March 30, 1856, 
relative to the navigation of the Black Sea, as well as to 
" that of the Danube.” They then declared Articles XI., 
XIII. and XIV. of the Treaty of I’aris, and the Special 
Convention between Kussia and the Porte annexed to 
Article XIV., abrogated and replaced by certain Articles 
that follow, among which is this new Article (HI*)* “ 
Black Sea remains open as heretofore to the mercantile 
marine of all nations” (e). Another Article (IV.) relates 
“to certain works necessary below Isaktcha to clear the 
“ mouths of the Danube, as well as the neighbouring parts 
of the Black Sea.” The Treaty of Paris and its Annexes, 
except where annulled or modified by the Treaty of London, 
are r^mewed and confirmed. 

CCVb. Here I must observe that this Treaty of Paris 

(e) The States in North and South America have an interest in the 
ohservance of this stipulation, though not directly parties to it. 



THE BLACK SEA. 


295 


tras neither wise in itself^ nor fair towards Eussia ; but the 
repudiation of it by that State in 1870 was unjustifiable) 
and set the evil precedent of one party to a treaty shaking 
off clearly subsisting obligations when the other parties to 
the treaty happened to be unable to enforce them. 

Private contracts may be set aside on the ground of the 
inferences of fraud and unfair dealing arising from their 
manifest injustice and want of mutual advantages. But no 
inequality of advantage) no Udon, can invalidate a treaty. 

It is truly said by Vattel, Si I’on pouvait revenir d’un 
“ trait^) parce qu’on s’y trouverait Ids^, il n’y aurait rien de 
“ stable dans les contrats des nations ” (/). No more dan> 
gerous attempt has ever been made than that of Eussia in 
1870 to escape from the obligations of the Treaty of 1856 on 
iTiu pretext. It is for the historian to dwell upon tlic hard~ 
ship inflicted by this Treaty upon Eussia, upon the time 
which she chose for this repudiation of it, and upon the ques- 
tion of the innocence or complicity of Pioissia. 

The International writer may i>oint with at least some 
satisfaction to tlic indignant refusal of all the other Powers 
to admit the plea of Eussia, and to the Protocol which pre- 
faced the new Treaty of 1871. 

At the Conference holden in London to consider th^ 
Treaty of 1856, Earl Granville, President of the Confer- 
ence, said:— “The Conference has been accepted by all 
“ the consignatory Powers of the Treaty of 1856, for the 
“purpose of examining without any foregone conclusion, 
“ Olid of discussing with perfect freedom the pro|)Osals which 
“ Eussia desires to make to us with regard to the revision 
“ which she asks of the stipulations of the said Treaty, 
“relative to the neutralisation of the> Black Sea. This 
“unanimity furnishes a striking proof that tlie Powers 
“ recognise tliat it is an essential principle of the law of 
“nations that none of them can liberate itself from the 
“ engagements of a treaty, nor modify the stipulations 


if) L. iL c. xii. 8. 158. 



296 . INTJSBXATIOKAL LAW. 

** thereof^ unless with the consent of the contracting parties 
by means of an amicable understanding. This important 
“ principle appears to roe to meet with general acceptance, 
“ and 1 have the honour to propose to you, gentlemen, to 
“ sign a Protocol ad Aoc.” 

The Protocol in question is then submitted to the Con- 
ference, and signed by ail the Plenipotentiaries (y) ; that is 
to say, Prussia (or North Germany), Austria, Great Britain, 
Italy, Russia, Turkey, and by subsequent adoption. Prance. 
All subscribed to the maintenance of this primary and ele- 
mentary principle of International Law, and in the circum- 
stances such subscription was most valuable to the welfare 
of States ; but, alas ! that in the year of our Lord 187 1 it 
should have been requisite ! 

So, lastly, it is to be observed that by a Treaty between 
Russia and the Porte, signed at London March 13, 1871, 
it was provided that the Special Convention concluded 
at Paris in March 1856, between Russia and the Porte 
relative to the number of vessels of war of the two con- 
tracting parties in the Black Sea, ** is and remains abro- 
gated.” 

This Treaty was communicated to the Conference at 
London, May 15, 1871. 

CC Vc. “ Constantinople ” (says a great historian) “ ap- 
“ pears to have been formed by nature for the centre and 
** capital of a great monarchy. Situated in the forty-first 
'^degree of latitude, the imperial city commanded from 
** her seven hills the opposite shores of Europe and Asia ; 
‘*thc climate was healthy and temperate, the soil fertile, 
**the harbour secure and capacious, and the approach on 
“ the side of the continent was of small extent and easy 
defence. The Bosphorus and the Hellespont may be con- 
** sidered as the two gates of Constantinople, and the prince 
who possessed those important passages could always shut 


(g) ProtocolB of Conferences liolden in London respecting the Treaty of 
March 30, 1856— Papers presented to Parliament, 1871. 



BOSPHOBUS. DARDANELLES. 


297 


" them against a naval enemy, and open them to the fleets of 
« commerce”(*)* 

"When the passages of the Straits were thrown open for 
" trade, they alternately admitted the natural and artiflcial 
"riches of the North and South of the Buxine and the 
" Mediterranean ” (i). 

The rights of the Ottoman Porte over the waters which 
constitute the passage between the Bosphorus and the 
Dardanelles have, ever since the conquest of Constanti> 
nople by the Turks, been necessarily a matter of great 
moment to all civilised States. The Porte has always 
maintained, as the " ancient rule ” of the Ottoman Empire, 
the right to prevent the passage of foreign ships of war 
through these Straits, both in time of peace and of war. 
This rule was founded on the general principle that the pos- 
sessors of both shores of a strait or river had dominion 
over the contiguous waters. The obligation of this rule in 
time of peace had been acknowledged by England in 1809, 
and by other States in 1840, 1841, 1856, and 1871. But 
on this last occasion, for the first time, it was provided 
that the Porte might open the said Straits in time of peace 
“ to the vessels of war of friendly or allied Powers, in case 
‘‘ the Sublime Porte should judge it necessary in order to 

secure the execution of the stipulations of the Treaty of 
“ Paris ”Q). 

With Imis exception the Porte must be taken to have 
obliged itself to close the Straits in time of peace to vessels 
of war. It does not appear that any treaty contains pro- 
visions on this subject when the Porte may he at war. It 
>vouId, in the absence of any treaty obligations, be competent 
to the Port§ to close the Straits against an enemy, and to 
open them to an ally, or, indeed, a neutral not an ally. 


(A) QUbon, vol. iii. ch. xviii. pp. 11, 12. 

(») Ih. pp. 12, 18. 

O') See a valuable leitw by Mr. Holland, Professor of International 
at Oxford, in The Timet of Februeiy 12, 1878. 


INTERNATIONAL LAW. 


At the breaking out of the recent war between Russia 
and the Forte the provisions on this subject were to be 
found in tlie Treaties of 1856 and 1871, with certain con- 
ventions annexed. 

By the former Treaty it was agreed as follows; — 

“ In the Kame of Almighty God. 

“ Their Majesties the Queen of the United Kingdom of 
“ Great Britain and Ireland, the £m])eror of Austria, the 
« Emperor of the French, the King of Prussia, tlie Emperor 
« of All tlie Ilussias, signing parties to the Convention of 
**July 13, 1841; and his Majesty the King of Sardinia; 
“ wishing to record in common their unanimous determina- 
« tion to conform to the ancient rule of the Ottoman Empire, 
« according to which the Straits of the Dardanelles and of 
“ the Bosphorus are closed to foreign ships of war, so long 
as the Porte is at ])eace : 

" Their said Majesties, on the one part, and his Majesty 
“ the Sultan, on the other, have resolved to renew the Con- 
« vention concluded at London on July 13, 1841, with the 
“ exception of some modifications of detail which do not 
“ affect the principle upon wliich it rests.” 

Their Majesties named for that purpose certain Plenipo- 
tentiaries. 

“ Art. I. — His Majesty the Sultan, on the one part, de- 
** dares that he is firmly resolved to maintain for the future 
“ the principle invariably established as the ancient rule of 
his Empire, and in virtue of which it has, at all times, been 
prohibited for the ships of war of foreign Powers to enter 
the Straits of the Dardanelles and of the Bosphorus ; and 
“ that, so long as the Porte is at peace, his Majesty will 
admit no foreign ship of war into the said Straits. 

“ And their Majesties the Queen of the United Kingdom 
“ of Great Britain and Ireland, the Emperor of Austria, 
the Emperor of the French, the King of Prussia, the 
Emperor of All the Kussias, and the King of Sardinia, on 
the other part, engage to respect this determination of the' 



ItOSPHOBUS. DARDANELLES. 


299 


<< Saltan, and to conform themselves to the principle above 
« declared. 

Akt. II. — The Sultan reserves to himself, as in past 
times, to deliver firmans of passage for light vessels under 
« dag of war, which shall be employed, as is usual, in the 
« service of the missions of foreign Powers. 

“ Akt. III. — The same exception applies to the light 
vessels under flag of war which each of the contracting 
Powers is authorised to station at the moutlis of the 
« Danube in order to secure the execution of the regulations 
“ relative to the liberty of that river, and the number of 
“ which is not to exceed two for each Power. 

“ Art. IV. — The present Convention, annexed to the 
general Treaty signed at Paris this day, shall be ratified, 
and the ratifications shall be exchanged in the space of 
“ four weeks, or sooner if possible ” (A). 

The clause in extenso of the Treaty of 1871 is as 
follows : — 

“ Art. II. The principle of the closing of the Straits 
of the Dardanelles and the Bosphorus, such as it has been 
“ established by the separate Convention of March 30, 
“ 1856, is maintained, with power to his Imperial Majesty 
“ the Sultan to open tlie said Straits in time of peace to the 
“ vessels of war of friendly and allied Powers, in case the 
“ Sublime Porte should judge it necessary in order to secure 
“ the execution of the stipulations of the Treaty of Paris of 
“ March 30, 1856.” 

In the diplomatic communications between Russia and 
England, after the breaking out of the recent war between 
Russia and the Porte, five subjects (7) were especially referred 
to by England, not as affecting European interests generally, 
though such was the fact, but on the lower and narrower 
grounds of affecting the particular interests of England. 


(i) Hatificadotis .exchanged at Paris, April 27, 1866. 

(0 Mr. Secretary Orosis Speech in the House of Commons, 1878. 
pofre^ndeme between Priwe Gcrischakoff' awH Lml Derby, 1877. 


300 


IKTERXATIONAL LAW. 


These five subjects were Constantinople, the Dardanelles, 
Egypt, the Suez Canal (m), and the Persian Gulf. The 
Black Sea is not mentioned. 

In the month of June, 1877, the Russian Prime Minister 
ivrote a reply to the note of the English Foreign Secretary, 
in which, among other matters, he states that Russia con- 
sidered that so important a maritime passage as the Dar- 
danelles, forming the connecting link between the Black Sea 
and the Mediterranean, must always be regulated by an 
international agreement, and not by any one Power alone. 

At the Congress which produced the recent Treaty of 
Berlin, the subject of the Dardanelles was introduced in an 
unsatisfactory manner. It was stated in Article LXllI. of 
the Treaty of Berlin that the Treaty of Paris of 1856, as well 
as the Treaty of London of 1871, are maintained in all such 
of their provisions as are not abrogated or modified by the 
preceding stipulations. 

The Treaty of Berlin contains no Article which, in direct 
and specific terms, mentions the authority of the Porte or 
of any other Power on the subject of the passage of the 
Dardanelles and the Bosphorus. At nearly the end of the 
Congress Lord Salisbury («) wrote to her Majesty’s 
Principal Secretary of State as follows : — 

“Berlin, July 11, 1878. 

** Sir,— I have the honour to enclose a copy of a declara- 

tion which I placed upon the Protocol with reference to 
“ the closing of the Straits to vessels of war. 

The Second Article of the Treaty of London reserves 
“to his Imperial. Majesty the Sultan ‘power to open the 
“said Straits in time of peace to the vessels of war of 
“friendly and allied Powers, in case the Sublime Porte 
“ should judge it necessary in order to secure the execution 


(m) Lord Derby, wriliiig to Count Schtmdoff, May 6, 1877, considers 
this question as “ foremost ” among English interests. 

(n) Correspondence rddmg to the Congrete of Beriin, with the Froitocol 
of the Congrest, laid htfore Paiiument, 1878, p. 314. 



BOSPHORUS. OARDANELLRS. 


301 


«of the stipulations of the Treaty of Paris.’ But the 
<< stipulations of the Treaty of Paris will be materially 
** modified by the Treaty of Berlin. The precise circum- 
‘‘stanceSj therefore^ which would be held to justify the 
<< Sultan in opening the Straits to his allies arc left in some 
“ ambiguity. The proposed Article, to the effect ‘ that the 
** Treaties of Paris and London shall be maintained in all 
“ such of their provisions as are not abrogated by the Treaty 
<*uf Berlin,’ will not furnish a complete solution of the 
“ difficulty ; for there are important provisions in the Treaty 
“ of Berlin, connected with modifications of that part of the 
“ Treaty of Paris which concerns the Black Sea, which may 
not necessarily be construed as taking the jdace of the 
“ Treaty of Paris for the purposes of Article 11. of the 
“ Treaty of London. The provision that Batoum is to 
remain essentially a commercial port is an instance in 
“point. Doubts might hereafter be raised whether the 
“ Treaty of Berlin and the Treaty of Paris had been so 
“incorporated that a breach of this stipulation would be 
“ such a violation of the Treaty of Paris as would justify 
“ the Sultan in opening the Black Sea to his allies. The 
“ Congress, which was approaching the teim of its labours, 
“ was disinclined to enter into the discussion of a question 
“ difficult in its character, and upon which protracted con- 
“troversy would probably have arisen. Under these cir- 
“ cumstances 1 thought it necessary to reserve to England 
“ a general liberty of interpreting according to the spirit of 
“ existing Treaties the engagements which Article LXIIL 
“ of the Treaty of Berlin will create. 

“ 1 have, &c. 

“ Salisbury.” 

The following passages are taken from the Protocols of 
the Berlin Congress : — 

With regard to the paragraph relating to the Treaties of 
“ Paris and London, Lord Salisbury remarks that at first 



302 


INTEENATIONAL LAW. 


** sight, at a preceding sitting, he had stated that he was not 
satisfied with the wording of this Article. These appre- 
hcnsioiis are now partly set at rest by the explanations 
“ oficrcd to the Congress : his Excellency confines himself 
“ to-day to asking that the following declaration, which is 
“ binding only on his Government, may be inserted in the 
“ Protocol ; — * Considering that the Treaty of Berlin wll 
modify an important part of the arrangements sanctioned 
“ by the Treaty of Paris of 18 /) 6 , and that the interpreta- 
"tion of Article II. of the Treaty of London, which is 
dependent on the Treaty of Paris, may thus become a 
“ matter of dispute ; 1 declare on behalf of England that 
the obligations of her Britannic Majesty relating to the 
“ closing of the Straits do not go further than an engage- 
** ment with the Sultan to respect in this matter his 
“ Majesty’s independent determinations in conformity with 
“ the spirit of existing Treaties ’ (o). 

“ Count Schouvaloff reserves the right of inserting in the 
“ Protocol a counter-declaration, if necessary.” 

He afterwards exercised this right; for it appears from 
the Protocol of the next and last sitting but one of the 
Congress, Count SehouvaloflF, referring to the declaration 
“ made in the preceding sitting by Lord Salisbury on the 
** subject of the Straits, demands the insertion in the Pro- 
“ tocol of a declaration on the same subject presented by 
** the Plenipotentiaries of Russia : * The Plenipotentiaries 
of Russia, without being able exactly to appreciate the 
** meaning of the proposition of the second Plenipotentiary 

(o) Cnmapondence relating to the Cougrett of Berlin, laid before 
Parliament, i878, p. 270 ; I’rotocol, 18 ; (Sitting of Jviy 11, 1878. 

lb. p« 213 : Consid^rant quo le I'raitd do ^rlin changora uno partio 
importante des arrangonieuts eauctionu^s pax le Traitd do Paris do 186C, 
et quo I'interpidtation de I’Article 11 du Traitd de l^udres qui depend 
du Tndtd de Paris peat ainsi etre sujet & des contestations : 

*'.Te ddclate de la port de I’Angleterre que les obligations de sa 
Majestd Britanniqiie concemant la cldture des Ddtroits se boment a un 
engagement envets le Saltan de respecter & cet dgord les ddterminations 
ind6pendantes de sa Majestd Impdriale, conformos h I'espnt des Trait6s 
existimts.*’ 




, LANDLOCKED SEAS. 


303 


« of Great Britain respecting the closing of the Straits, 
“restrict themselves to demanding, on their part, the 
“ insertion in the Protocol of the observation, that, in their 
“ opinion, the principle of the closing of the Straits is an 
“ European principle, and that the stipulations concluded in 
“ this respect in 1841, 1856, and 1871, confirmed at present 
« by the Treaty of Berlin, are binding on the part of all 
“ the Powers, in accordance with the spirit and letter of the 
“ existing Treaties, not only as regards the Sultan, but also 
“as regards all the Powers signatory to these transac- 
“ tions ’ ” (p). 

So the matter ended as far as the Congress at Berlin was 
concerned. One of all the Powers announced a particular 
exposition of a portion of the Treaty about to be made, 
“ binding only on his Government.” It would be difficult 
to maintain that this exposition in a Protocol can affect the 
plain meaning of Article LXIII. of the Treaty. 

CCVI. There is another class of enclosed seas to which 
the same rules of law are applicable — seas which are land- 
locked, though not entirely surrounded by land. Of these, 
that great inlet which washes the coasts of Denmark, Sweden, 
Russia, and Prussia, the Ostsee as the Germans call it, the 
Baltic Sea according to its usual appellation, is the prin- 
cipal (g). 

(j>) Corrdtjxmdence rdaUng to the Cmgreit of BerUn, t^e., hid before 
I’arlittment, 1878, pp. 277, 243; “ Les Pldnipotentiivires de Rnssie, sans 
pouToir 86 rendre exActeinent compte de la proposition de M. le Second 
Pl^nipotentiiure de In Grande'Bieti^econcemnntla ddture des D^troits, 
86 Wneut a demander de leur c6t4 I’insorfion au Protocole de Tolwei^a- 
tion, gn’ii tear avis, le principe de la cloture des D^troits est un principe 
enro})4en, et que les stipulations conchies h cet ^gard en 1841, 1856, et 
1871, coafinu^s actnellement par le Traitd de Berlin, sent obligatoires 
de la part de toutes les Puissances, confonu^meut h I'esprit et d la lottro 
dM Trait^s existsnts, non*8enlement vis-d-vis du Sultan, inais encoro 
vi8-d.T)is de toutes les Puissances signataires de ces transactions," 

(f) HeffUrtt 143, n. 2. 



304 


INTERNATIONAL LAW; 


CHAPTEK IX. 

PECCLIAR CASE OF THE ISTHMUS OF CENTRAL AMERICA. 

CCVII. The most remarkable, and perhaps the most im- 
portant, instance of the establishment of the jus transitus 
innoxii is afforded by the recent Convention between Great 
Britain and the United States res|>ccting the Isthmus of 
Central Americas which connects the great highways of the 
world, the Atlantic and Pacific Oceans. The Treaty con- 
cerns the formation of a ship-canal, or of a railway over this 
strip of land. This Treaty, both on account of its immediate 
object, and the principle which it expressly recognizes and 
recites, is of such vast importance, both to the present and 
future interests of mankind, that it is necessary to state the 
provisions in extenso. 

The preamble set forth that, ** Her Britannic Majesty 
** and the United States of->America being desirous of con- 
“ solidating the relations of amity which So happily subsist 

between them, by setting forth and fixing in a Convention 
“ their views and intentions with reference to any means of 
“ communication by ship-canal, which may be constructed 
" between the Atlantic and Pacific Oceans by the way of the 
“ river St. Juan de Nicaragua, and either or both of the 
** lakes of Nicaragua or Managua, to any port or place on 
**.the Pacific Ocean,” &c. 

The Articles were as follows: — '“Art 1. The Govem- 
“ raents of Great Britain and the United States hereby de- 
“ dare that neither the one nor the other will ever obtain or 
“ maintain fur itself any exclusive control over the said ship- 
“canal; agreeing that neither will ever erect or maintain 
“ any fortifications commanding the same, or in the vicinity 



ISTHMtJS OF CENTRAL AMERICA^ 


3U5 


« thereof, or occupy,, or fortify, or colonise, or assume or 
exercise any doonnion over Nicaragua, Costa Bica, the 
“ Mosquito Coast, or any part of Central America (a) ; nor 
« will either make use of any protection which either affi)rds 
" or may afford, or any alliance which either has or may 
“ have, to or with any State or people, for the purpose of 
“ erecting or maintaining any such fortifications, or of occu- 
pying, fortifying, or colonizing Nicaragua, Costa Bica, 
“ the Mosquito Coast, or any part of Central America, or 
“ of assuming or exercising dominion over the same. Nor 
will Great Britain or the United States take advantage of 
“ any intimacy, or use any alliance, connection, or influence 
“ that either may possess with any State or Government 
“ through whose territory the said canal may pass, for the 
“ purpose of acquiring or holding, directly or indirectly, for 
“ the subjects or citizens of the one, any rights or advan- 
‘‘ tages, in regard to commerce or navigation through the 
said canal, which shall not be offered, on the same terms, 
“ to the subjects or citizens of the other. 

“ Art. 2. Vessels of Great Britain or the United States 
“ traversing the said canal shall, in case of war between the 
‘‘ contracting parties, be exempted from blockade, detention, 
** or capture by either of the belligerents ; and this provision 
“ shall extend to' such a distance from the two ends of the 
‘^said canal as it may hereafter be found expedient to 
“ establish. 

** Art 3. In order to secure the construction of the said 
“ canal, the contracting parties engage that if any such 
canal shall be undertaken upon fair and equitable terms 
“ by any parties having the authority of the local govern- 
“ mcni'%r rgovernments through whose territory the same 
“ may pass, then the persona employed in making the said 
“ canal, and thtir property used or to be used for that object 
"shall be protected, from the commencement of the said 
cwal, to its completion, by the Governments of Great 


|fl) 17* infra, p. 309. 
X 


VOt. I. 



306 


INTERNATIONAL LAW. 


Britain and the United States, from unjust detention, 
confiscation, seizure, or any violence whatsoever. 

" Art 4. The contracting parties will use whatever in- 
“ fiuence they respectively exercise with any State, States, 
*‘or Governments possessing, or claiming to possess, any 
** jurisdiction or right over the territory which the said 
“ canal shall traverse, or which shall be near the waters 
applicable thereto, in order to induce such States or 
Governments to facilitate the construction of the said 
“canal by every means in their power; and, furthermore, 
“ Great Britain and the United States agree to use their 
“ good offices, wherever or however it may be most exj)e- 
“dient, in order to procure the establishment of two free 
“ ports, one at each end of the said canaL 
“ Art. 6. The contracting parties farther engage, that 
“ when the said canal shall have been completed, they will 
** protect it from inteiTuption, seizure, or unjust confiscation, 
“ and that they will guarantee the neutrality thereof, so 
“ that the said canal may for ever be open and free, and 
“the capital invested therein secure. Nevertheless, the 
“ Governments of Great Britain and the United States, in 
“ according their protection to the construction of the said 
“ canal, and guaranteeing its neutrality and security when 
** completed, always understand that this protection and gua^ 
“ rantee are granted conditionally, and may be withdrawn by 
“ both Governments, or either Government, if both Govem- 
“ ments or either Government should deem that the persons 
“ or company undertaking or manning the same adopt or 
** establish such regulations concerning tlie traffic thereupon 
“as are contrary to tlie spirit and intention of this Conven> 
“ tion, either by making unfair discriminations in favour of 
“the commerce of one of the contracting parties over the 
“ commerce of the other, or. by imposing oppressive exactions 
“ or unreasonable tolls u^wn passengers, vessels, goods, wares, 
“ merchandise, or other articles. Neither party, however, 
•“ shall withdraw the aforesaid protection and guarantee, 
“ without first giving six months’ notice to the other. . 



ISTHMUS OF CENTllAL AMERICA. 


307 


Art 6. The contracting parties in this Convention 
“ e*^g**g® invite every State with which both or either 
“ have friendly intercourse, to enter into stipulations with 
« them, similar to those which they have entered into with 
** each other, to the end that all other States may share in 
the honour and advantage of having contributed to a work 
of such general interest and importance as the canal herein 
contemplated ; and the contracting parties likewise agree 
that each shall enter into treaty stipulations with such of 
the Central American States as they may deem advisable, 
“ for the purpose of more effectually carrying out the great 
“design of this Convention, namely, that of constructing 
“ and maintaining the said canal as a ship communication 
“ between the two oceans for the benefit of mankind, on 
“ equal terms to all, and of protecting the same ; and they 
“ also agree, that the good ofHccs of either shall be em- 
“ ployed, when requested by the other, in aiding and as- 
“sisting the negotiation of such treaty stipulations; and 
“ should any differences arise as to right or property over 
“the territory through which the said canal shall pass, 
“ between the States or Governments of Central America, 
“ and such differences should in any way impede or obstruct 
“ the execution of the said canal, the Governments of Great 
“ Britain and the United States will use their good offices 
“to settle such differences, in the manner best suited to 
“ promote the interests of the said canal, and to strengthen 
“ the bonds of friendship and alliance which exist between 
“ the contracting parties. 

“Art. 7. It being desirable that no time should be 
“unnecessarily lost in commencing and constructing the 
“said canal, the Governments of Great Britain and the 
“ United States determine to give their support and en- 
“ couragement to- such persons or company as may first offer 
“ to comnlence the same, with the necessary capital, the 
“ consent of the local authorities, and on such principles as 
“ accord with the spirit and intention of this Convention ; 
“ and if any persons or company should already have, with 



308 


INTERNATIONAL LAW. 


**a,ny State through which the proposed slup-canal may 
pass, a contract for the construction of such a canal as that 
" specified in this Convention, to the stipulations of which 
contract neither of the contracting parties in this Conven. 
“ tion have any just cause to object, and the said persons or 
company shall, moreover, have made preparations and 
** expended time, money, and trouble on the faith of such 
contract, it is hereby agreed that such persons or company 
shall have a priority of claim over every other person, 
" persons, or company, to the protection of the Governments 
of Great Britain and the United States, and be allowed a 
year, from the date of the exchange of the ratifications of 
“ this Convention, for concluding their arrangements, and 
** presenting evidence of sufiicient capital subscribed to 
“ accomplish the contemplated undertaking ; it being under- 
stood that if, at the expiration of the aforesaid period, such 
persons or company be not able to commence and carry out 
“ the proposed enterprise, then the Governments of Great 
Britain and the United- States shall bo free to afford their 
“ protection to any other persons or company that shall be 
prepared to commence and proceed with the construction 
** of the canal in question. 

"Art. 8. The Governments of Great Britain and the 
** United States having not only desired, in entering into 
this Convention, to accomplish a particular object, but also 
to establish a general principle, they hereby agree to extend 
“ their protection by treaty stipulations to any other prac- 
“ ticable communications, whether bg canal or railway, across 
** the isthmus which connects North and South America ; 

and especially to the interoceanic communications, should 
“ the same prove to be practicable, whether by canal or 
** railway, which are now proposed to be established by the 
“ way of Tehuantepec or Panama. In granting, however, 
“ their joint protection to ang such canals or railways as are 
“ by this Article specified, it is always understood by Great 
Britain and the United States, that the parties constructing 
“ or owning the same shall impose no other chaises or con- 



ISTHMUS OF CESTKAL AMERICA. 309 

« ditions of trallio. thereupon than the aforesaid Governments 
•• shall approve of as just and equitable ; and that the same 

canals or railways, being open to the subjects and citizens 

of Great Britain and the United States on equal terms, 
‘‘shall also be open on like terras to the subjects and 
“citizens of every other State which is willing to grant 
“ thereto such protection as Great Britain and the United 
“ States engage to afford. 

“ Art. 9. The ratifications of this Convention shall be 
“ exchanged at Washington within six months from this day, 
“ or sooner if possible. 

“ In faith whereof, we, the respective Plenipotentiaries, 
“ have signed this Convention, and have hereunto affixed 
“ our Seals. 

“ Done at Washington, the nineteenth day of April anno 
“ Domini One thousand eight hundred and fifty. 

(Signed) “Henry Lttton Bulwer. 

“John M. Clayton” (A). 

CCVIII. Before the ratifications were exchanged, it was 
explained by the British to the American Plenipotentiary, 
that the words “ or any part of Central America ” were not 
to apply to the British settlements in Honduras, or its 
dependencies. This explanation was fully adopted by the 
Aineiican Plenipotentiary, and the ratifications were ex- 
changed. The Treaty was subsequently submitted by the 
President of the United States to the Senate (c), and was 
approved of, after discussion, by that deliberative assembly. 

. It was, however, contended by certain persons averse from 
the conditions of the Treaty, that the Senate did not under- 
stand that the Treaty was to be construed with reference to 
the American Plenipotentiary’s consent, which had been 
expressed in the reply to the British Plenipotentiary’s ex- 
planation with respect to the Honduras, and consequently 


(ft) Afimttl RegiUer (1860), pp. 387-800. 
(c) Yidt tupra, § cxix. 



310 


INTEBNATIONAL LAW. 


that the Senate had in reality not assented to the Treaty so 
qualified. 

Though there is no ground for this supposition, the objec- 
tion evinces how much a knowledge of the department of 
Government in which the power of making and ratifying 
Treaties is vested by the Constitution of each State, is neces- 
sary for the security of the foreign relations of all States. 

CCIX. The reason of the thing would indeed seem to 
have excluded the Honduras, as the terms were employed 
in the Treaty, even without the subsequent express limita- 
tion, from the category of " Central America,” though geo- 
graphically and literally within the scope of the expressions. 
It is true that Great Britain had originally only certain 
limited jura in re with respect to the Honduras, such as 
the right of cutting mahogany and logwood conceded to 
her by Treaties with Spain, the right of sovereignty being 
reserved to the Crown of the latter country ; yet since Spain 
has ceased to exercise any sovereignty, cither at Honduras 
or in the circumjacent territory, and the British jurisdiction 
is exercised there under a Commission of the Ci'own which 
has been recognized by the United States, inasmuch as 
their Consul is received at Belize under the exequatur oi' iho 
British Crown, Honduras, therefore, was justly considered 
as both de facto and dejnre a British settlement ; and the 
terms in the Treaty appear, by the ordinary and admitted 
rules of construction (J) applied with reference to the 
subject-matter and context of tlie Treaty, not to include 
the British possession of Honduras {e). 

The discordant constructions put by England and the 
United States upon this Treaty did not, as has been shown, 
receive a satisfactory adjustment until 1859-60, when Eng- 
land, by separate Treaties with Honduras and Nicaragua, 

(<0 Vukpoft, chapter on Trba.tie 3, vol. ii. part v. chap. viii. 

(«) " Convention outre sa Majesty le Boi de la Grando-Bretagne et 
sa Majestd le Koi d'Eapugne, eonclne & l/)ndies le 14 juillet ITtiO.”— 
MttrtenB, Sec. de Tr, iv. (1780), pp, 108-140, 

Amuoil Sefgter, 1787, p. 78. 



ISTHMUS OF CENTRAL AMERICA. 


311 


relinquished the Mosquito protectorate, and recognized the 
Bay Islands as part of the Bepublic of Honduras (J), 

The neutral character of this ship-canal between the 
Atlantic and Pacific Oceans has been thus recognized and 
established. The neutrality of what is called the ** Hon- 
" duras Interoceanic Efdlway was guaranteed by a Con- 
vention of August 27, 1856, between Great Biitain and 
Honduras {g). 

(/) De Martem, vol. xlv. p, 374 j Hertdefs Treatm, vol. xi. p, 367. 

(^) Lawrences i. p. 478 ; Hertd&Cs Treutmy vol. x, p. 871, 

The contract between the State of New Granada and the Panama Hall- 
way Company is given in the State Papers^ vol. xlii. p. 1187. In 1846 the 
United States and New Granada entered into a Treaty of Commerce and 
Navigation . — State Papers^ vol. xxxvi. p. 094, See also Treaty between 
England and the Unit^ States of Colombia, February 16, 1866. 



312 


INTEKNATIONAL LAW. 


CHAPTER X. 

SELF>FBE8£RVAT10N. 

CCX. The Right of Self-Preservation, by that defence 
which prevents, as well as that which repels, attack, is tlic 
next International Right which presents itself for discussion, 
and which, it will be seen, may under certain circumstances, 
and to a certain extent, modify the Right of Territorial 
Inviolability. 

CCXI. The Right of Self-Preservation is the first law of 
nations, as it is of individuals. A society which is not in a 
condition to repel aggression from without, is wanting in its 
principal duty to the members of which it is conijMsed, and 
to the chief end of its institution (a). 

All means which do not affect the independence of other 
nations are lawful for this end. No nation has a right to 
prescribe to another what these means shall be, or to require 
any account of her conduct in this respect. 

CCXII. The means by which a nation usually provides for 
her safety are — 1. By alliances with other States. 2. By 
maintaining a mUitary and naval force. And 3. By erecting 
fortifications, and taking measures of the like kind within 
her own dominions. Her full liberty in this respect cannot, 
as a general principle of International Law, be too boldly 
announced or too firmly maintained ; though some modifi- 
cation of it appears to flow from the equal and corresponding 

(a) 1. 1. c. xiv. 8. 177. Ov yap aSptaris ioriv ^fuv rov vpAyiunfott 

oX\ viroXftirrrat r4 SiicaHfr(m>i>Kat ivaymuoToroyTUp tp^p, t vtrtp^aiwvtriP 
iKoprts oSroi. ri oSp itrri roSro; JuvPtarBai rbp vp^npop nakipovpff — 
Demodh. mp\ rStp ip Ktppop, c. 91. Eet igitor htdC non scripts sed nalft 
lex, etc. — Cic, pro Milam, c. 4. 



SELF-PRESERVATION. 


313 


rights of other nations, or at least to be required for the 
sake of the general welfare and peace of the world. 

CCXIIl. Armaments suddenly increased to an extra* 
ordinary amount are calculated to alarm other nations, 
whose liberty they appear, more or less, a<;cording to the 
circumstances of the case, to menace (6). 

It has been usual, therefore, to require and receive ami- 
cable explanations of such warlike preparations ; the answer 
will, of course, much depend upon the tone and spirit of the 
requisition. 

Thus the British Secretary for Foreign Affairs (Lord 
Grenville), in 1793, replied to Monsieur Chauvelin (who had 
been the accredited minister of the King of France, and re- 
mained in England after the Republic was declared), " It 
“ is added, that if these explanations should appear to us 
“ unsatisfactory ; if you are again obliged to hear the lan- 
** guage of haughtiness ; if hostile preparations are continued 
** in the ports of England, after having exhausted everything 
“ which could lead to peace, you will dispose yourselves to 
“ war. 

If this notification, or that which related to the treaty of 
commerce, had been made to me in a regular and official 
** form, I should have found myself obliged to answer, that 
a threat of declaring war against England, because she 
“ thinks proper to augment her forces, as well as a declara- 
** tion of breaking a solemn treaty, because England has 
“ adopted for her own security precautions of the same 
“ nature as those which are already established in France, 
“could neither of them be considered in any other light 
“ than that of new offences, which, while they subsisted, 
“ would preclude all negotiation ” (c). 

CCXIV. We have hitherto considered what measures a 
nation is entitled to take, for the preservation of her safety, 
foUhin her own dominions. It nmy happen that the same 

(i) Mortem, 1. iv. c. i. pp. l]6-7-8. 

(c) State raj/ert during f/ie War, Load. 1704, p; 242. 



314 


INTBBNATIONAL LAW. 


Bight may warrant her in extending precautionary measures 
without these limits, and even in transgressing the borders of 
her neighbour’s territory. For International Law considers 
the Bight of Self-Preservation as prior and paramount to 
that of Territorial Inviolability, and, where they confiict, 
justifies the maintenance of the former at the expense of the 
latter right. 

The case of conflict indeed must be indisputable, pomeri^ 
diana luce elarior in the language of canonists. Such a case, 
however, is quite conceivable. A rebellion, or a civil com- 
motion, it may happen, agitates a nation ; while the authori- 
ties are engaged in repressing it, bands of rebels pass the 
frontier, shelter themselves under the protection of the con- 
terminous State, and from thence, with restored strength and 
fresh appliances, renew their invasions upon the State from 
which they have escaped. The invaded State remonstrates. 
The remonstrance, whether from favour to the rebels, or 
feebleness of the executive, is unheeded, or, at least, the evil 
complained of remains unredressed. 

In this state of things the invaded State is warranted by 
International Law in crossing the frontier, and in taking 
the necessary means for her safety, whether these be the 
capture or dispersion of the rebels, or the destruction of 
their stronghold, as the exigencies of the case may fairly 
require. 

eeXV. Vattel maintains strongly this opinion : “ H est 
** certain que si mon voisin donnait retraite d mes ennemis 
“ lorsqu*ils auraient du pire etse trouveraient trop faibles pour 

m^echappeTi leur laissant le temps de se refaire, et d^epier 
** Toccasion de tenter une nouvelle irruption sur mes terres, 

cette conduite, si pr^judiciable k ma sfiret^ et k mes intdr6ts, 
“ serait incompatible avec la neutrality. Lors done que mes 
<< ennemis battus se retirent chez lui, si la charit4 ne lui 
** permet pas de leur refuser passage et silrety, il doit les 
** fiure passer outre le plus t6t possible, et ne point souffrir 
** quHls se tiennent aux aguets pour nCattaquer de nouveau; 
** auirement il me met en droit de les alter ehercher dans ses 



SELP-PBK8ERVATI0N. 


315 


« terres. (Test ce qui (xrrive aux nations qui ne sont pas en 
“ etat de fairs respecter leur territoire ; le tb^Stre de la guerre 
“ s’y (jtablit bieutdt ; on y marche^ on y campe, on s’y bat, 
« comme dans un pays ouvert a tons venants ” (d). 

CCXVI. The hypothetical case here described was that 
which Great Britain alleged to have actually occurred, ex- 
cept that the circumstances were of a more aggravated 
character, with respect to the invasion of her Canadian pos- 
sessions in 1838. For she alleged that the Canadian rebels 
not only found shelter on the American frontier of the 
Niagara, but that American citizens joined the rebels, and 
that they obtained arms, by force indeed, from the American 
arsenals, and that shots were fired from an Island within the 
American territories, while a steamer called the Caroline was 
employed in the transport of munitions of war to the Island, 
which when not so employed was moored off tlie American 
shore. In this state of things a British captain and crew, 
having boarded and forcibly captured the Caroline, cut her 
adrift, and sent her down the falls of Niagara. The act was 
made the subject of complaint, on the ground of violation of 
territory, by the American Government, and vindicated by 
Great Britain on the ground of self-preservation; which, if 
her version of the facts were correct, was a sufficient answer 
and a complete vindication. 

CCXVII. In 1826, the mustering and equipment of 
Portuguese rebels (c) on the Spanish frontier, unchecked by 
the Spanish authorities, was considered by Great Britain as 
obliging her to consider that "casus foederis,” on the happen- 
ing of which she was bound to assist her ally, to have actually 
arisen ; and she accordingly sent troops to PortugaL 

OCX VIII. Upon the same principle, tliough a nation h^ 
4 nght to afford refuge to the expelled governors, or even the 
leaders of rebellion flying from another country, she is bound 


(<0 lib. iii. c. vii, s. 133. 

(«) Mr. Catminfs Speech on the King's message relative to the affairs 
0 Ivrtwgai^ December 12th, 1820. — Cannmt/s Speeches, vol. vL p. 60. 



316 


INTERNATIONAL LAW. 


to take all possible care that no hostile expedition is con- 
certed in her territories, and to give all reasonable guaran- 
tees upon this subject, in answer to the remonstrances of 
the nation from which the exiles have escaped (J). During 
the time when the residence of the Pretender in France 
within the vicinity of England gave reasonable alarm to the 
British Government, the removal of his residence to a place 
of less danger to Great Britain formed the subject of the 
stipulations of various Treaties. If the hostile expedition of 
the late Emperor of the French in 1842 against the then 
existing monarchy of France had taken place with the 
sanction or connivance of the British Government, England 
would have been guilty of a very gross violation of Inter- 
national Law ; and she showed at the time a wise and just 
anxiety to purge hci'self from any such suspicion. But 
though the strange vicissitudes of fortune afterwards com- 
pelled the very monarch against whom that expedition had 
been directed to take refuge in this country, the then repre- 
sentative of the executive of France, though the leader of 
that expedition, had no cause of complaint, either on this 
ground, or because other political refugees, professing all 
shades and kinds of opinion, resided in safety in England ; 
which, before it was their refuge, had so often been, and 
indeed still is, the theme of their vituperation. 

CCXIX. In all cases where the territory of one nation is 


(/) “ Lb 8 Princes de Trannlranie refuseront asyle anx ennomis de la 
Mnison d’Autriche et rdciproquement cette Puissance ne pourra donner 
retraite aux enuemis des Princea et Etats de Transilvanie .” — Traiti de 
Vienne j Art. 12 ; Mablt/, Le Droit pnhlic, t, ii. p. 60. 

L'aunde 1716 fut employee en u^gociations entre la France, I’Angle- 
terre, et les Pronnees-Unies ; et dans la suivante, ces Puissances sign^rent 
a ?a Haye le Traite de la Tnple Alliance, La France se chargeoit d’en- 
gager le Chevalier de Saint-Qeorges Ii sortir du comtat d’Avipnon, 
pour ee retirer au-del& des Alpes. Chaque contractant promettoit de ne 
donner aiicun asyle sur sea terres aux personnes qiii seroient tWclar^es 
rebelles par Tun dos deux autres.’’ — lb, p. 10. ■ 

“ La France promet de ne point reconnoitre les droits qiie le fils du 
Roi Jacques II peut avoir sur TAngleten'e, et de ne le pas soiiffrir snr 
ses terres.’’— TV Art. 4; 76. p. 157. 



SELF-PRESERVATION. 


317 


invaded fi'om the country of another — whether the invading 
force be composed of the refugees of the country invaded, 
or of subjects of the other country, or of both — the Govern- 
ment of the invaded country has a right to be satisfied that 
the country from which the invasion has come has neither 
by sufferance nor reception ( patientia aut recej)tu) knowingly 
aided or abetted it. She must purge herself of both these 
charges ; otherwise, if the cause be the feebleness of her 
Government, the invaded country is warranted in redressing 
her own wrong, by entering the territory, and destroying the 
preparations of war therein made against her ; or, if these 
have been encouraged by the Government, then the invaded 
country has a strict right to make war upon that country 
herself; because she has affoi'ded not merely an asylum, but 
the means of hostility, to the foes of a nation with whom 
she was at peace. For it never can be maintained, how- 
ever such a State may suffer from piratical incursions, which 
the feebleness of the executive Government of the country 
whence they issue renders it incapable of preventing or 
punishing, that, until such Government shall vohmtarily 
acknowledge the fact, the injured State has no right to give 
itself that security, which its neighbour’s Govci-nment 
admits that it ought to enjoy, but which that Government 
is unable to guarantee. 

It must be admitted that there is a practical acknowledg- 
ment of such inability, which, as much as a voluntary confes- 
sion, justifies the offended country in a course of action which 
would under otlier circumstances be unlawful. There is a 
very important chapter, both in Grotius, and in his commen- 
tator Heineccins, entitled De Poenarum Comraunicatione,” 
^ to when the guilt of a malefactor, and its consequent 
punishment, is communicated to others than himself; and 
the question is particularly considered with reference to the 
responsibility of a State for the conduct of its citizens. The 
tests for discovering “ Civitasne deliquerit an cives ? ” are 
laid down with great precision and unanimity of sentiment by 
all Publicists, and are generally reduced to two, as will be 



318 


INTERNATIONAL LAW. 


seen from the following extract from Burlamaqui {g) (who 
repeats the opinion of Grotius (A) and Heineccius): — “ In 
“ civil societies ” (he says), ** when a particular member has 
** done an injury to a stranger, the governor of the common- 
wealth is sometimes responsible for it, so that war may be 
declared against him on that account. But to ground this 
“ kind of imputation, we must necessarily suppose one of 
“ these two things, sufferance or reception ( i), viz. either that 
“the sovereign has suffered this harm to be done to the 
“ stranger, or that he afforded a retreat to the criminal. In 
“ the former case it must be laid down as a maxim, that a 
“sovereign who, knowing the crimes of his subjects — as, 
“ for example, that they practise piracy on strangers,— and 
“ being also able and obliged to hinder it, does not hinder it, 
“ renders himself criminal, because he has consented to the 
“ bad action, the commission of which he has permitted, and 
“consequently furnished a just reason of war. The two 
“ conditions above mentioned, I mean the knowledge and 
“ sufferance of the sovereign, are absolutely necessary, the one 
“ not being sufficient without the other to communicate any 
share in the guilt. Now it is presumed tiiat a sovereign 
“knows what his subjects openly and frequently commit ; 
“ and as to his power of hindering the evil, this likewise is 
“ always presumed, unless the want of it be clearly proved.” 
So Vattel (J)\ “Si un souverain qui pourrait rctenir ses 
“ sujets dans les regies de la justice et de la paix, souffre 
“ qu’ils maltraitent une nation, ou dans son corps ou dans 


(^r) The Principles of JUiatvii'al and I^uMic Law, by J, J. Burlama- 
gui, Pretfessor at Geneva, I only possess the Rnglish translation, 
Ijoudoi), 1703. Sir J. blachiotosh calls him “ an author of distinguished 
merit." 

(A) See Groiias de J, B. td P, \. ii. c. zxi. : De Poenarwn Coni- 
miOiteottone; and the admirable Praiedimes of Hekueem on this 
chapter. 

Vattd, 1. ii. c. vi. : “ Do la part quo la nation peut avoir aux actions do 
ees eitoyena.” 

(i) “ Patientia aut roceptu.*— Jleinecc. 

(y) Book ii. c. vi. B. 72. 




S£LF-PBESBRVATIOir. 


319 


" ses membreSj il nc fait pas moins de tort d toute la nation, 
" quo s’il la maltraitait lui-inSme ” (A). 

The act of an individual citizen, or of a small number of 
citizens, is not to be imputed, without special proof, to the 
nation or Government of which they are subjects (/). A 
different rule would of course apply to the acts of large num- 
bers («) of persons, especially if they appeared in the array 
and with the weapons of a military force, as in the case of 
the invasion of Portugal which has been referred to above. 

eeXX. The consideration of the means by which nations 
have enabled themselves to perform this duty towards their 
neighbours and the rest of the world, and of the very im- 
portant and much-vexed question of the lawfulness of allow- 
ing a friendly Power to raise troojis in a neutral territory, 
Avill bo discussed when we enter upon the Right of Jurisdic- 
tion, incident to a State, over all persons and things mthin 
the territory, and also in a later part of this work upon the 


(It) Letter to Lord Ashburton, by IL PhSUmoref pp. 27, 183. London, 
1842. 

(l) ** dependant, comme il est impossible & I’Etat le mieux n%ld, an 
souveinin le {das vigilant et le plus absolu, de moddror & sa volontd 
toutes les actions de ses sujets, de les contenir en toute occasion dans la 
pins exacte obdissance, il serait injuste dlmputer & la nation ou au 
BOuvenun toutes les iautes des dtoyens. On ne peat done dire, en gd- 
udral, que I’on a refu une injure d’une nation, parco qu’on I’aura re 9 ue 
de quelqu’un do ses mombres (on no pent iniputer it la nation les actions 
dos particuliers).” — Vatfel, t. L 1. ii. c. vi. s. 73. 

(m) zwoites Buch, Volkerraiht im Zugttmd des Ut^riedens, 
s. 148, pp. 268-0 : After saying that wbat the State may not lawfully do 
collectively it may not do individually — “ Sollto freilieh die Thdlnabme 
der Uuterthanen eine massiatdiafle werden, dadurch die Aufmorksamheit 
und Bedeuklicbkeit der Gegenpartei erregen, demnacb llepresalion der- 
selben befurchten lessen.” 

Zmok, de Judicio inter GmteSf pars ii. s. vi. p. 120 (cd. Qxonise, 1G50) : 
‘‘An repnesaliffi sint licitieP Imperator Zeno iequitati natumli con- 
trarium dicit ut, pro alicno debito, alii molostentur ; et in Novella Justi- 
niani prohibentur pignoratioues pro aliis : axldita causa, quod rationem 
non babet, aliiun esse debitoTem,alium exigi : Jxwe tamm Oeniium intro- 
ductnm apparet, at pro eo quod prrestare debet civilis sodetas, aut ejus 
caput, sive per se primo, sive quod alieno debito jus non reddendo se 
obstrinxerint, etdigata sint omnia bona subdiiomm.” 



a20 . INTBBNAT1DKA& LAW. 

Bights and Duties of Neutrals. But this present is not an 
unfit place for offering some general remarks upon the con* 
trol exercised by the State over strangers, whether domiciled 
and commorant (Aa&itonf), or merely travellers through the 
coxmirj {itrangers qui passent) {n). 

It is a received maxim of International Law, that the 
Government of a State may prohibit the entrance of strangers 
into the country, and may therefore regulate the conditions 
under which they shall be allowed to remain in it, or may 
require and compel their departure from it. According to 
the Law of England, local allegiance is due from an alien or 
stranger horn, so long as he continues within the protection 
and dominion of the Crown ; and it ceases the instant he trans- 
fers himself from this kingdom to another. The allegiance 
and the protection of the stranger, therefore, are both confined, 
in point of time, to the duration of the residence ; and in point 
of locality, to the dominion of the British Empire (o). During 
periods of revolutionary disturbances both on the Continent 
and within this kingdom, it has been customary to pass Acts 
of Parliament authorizing certain high officers of the State 
to order the departure of aliens from the . realm within a 
specified time, and their imprisonment in case of refusal. 
These Acts have generally been limited in their duration : 
the operation of the last was confined to the period of one 
year (p). 


(n) Vattel, 1. i. c. xix. 8. 21-3, 1, ii. c. viii. passim. 

( o) Qdeifis case, 7 Coke's Reports, 6 a. 

&t(pken's Blaelatone, Tol. ii. book iv. pt. i. c. 2. 

1 l{<^s Hem of the Crown, GO. 

(p) “This power,” as Mr. Canning observed, “had imdonbtedly.been 
exercised by the Crown, sonietinies with, sometimes without, the consent 
of Parliament” (6 Cmnin^s Speeches, p. 256). The S3 Ceo. ill. c. 4, 
A.i>. 1793, was the first Alien Act passed by the Parliament of this 
kingdom, and was followed up by Lord Qrenville’s note, dismissing 
Monideur Chauvelin. 

[Trmdatwn,,') 

“ WhitehaH, Jan. 24, 1793. 

“ I am charged to notify to you. Sir, that the character with which 
you have been invested at this Court, and the functions of which have been 




SELF-^RESBRVATIOX. 


so long suspended, Iteing now entirely terminated by the fatnl death of 
his late Most Christian Majesty, you have no more any publio^character 
here.' , 

<< The King can no longer, after such, an event, permit j^our residence 
here. His Majesty has thought fit to order that you should retire from 
this kingdom within the term of eight days ; and I lierewith transmit to 
you a copy <rf the order which hia Majesty, in hia Privy Council^ has 
given to thie effect. 

** I send you £v, passport for yourself and your suite ; and I shall not 
fall to take all the other necessary steps, in order that you may return to 
France with all the attentions which are due to the chai-acter of Minister 
Plenipotentiary from his Most Christian Majesty, which you have exer- 
cised at this Court. 

“ I liavo the honour to be, &c. 

. Gubxville.” 


{State Tapers on the Wmr^ p. 245.) 

Tliia Act was followed up by the undor-raentionod statutes, all uow 
repealed 

88 Geo. in. c. 60, 77. 60 Geo. III. c. 86. 

41 Geo. in. c. 24. 68 Geo. III. c. 06. 

42 Geo. III. c. 92, 1 Geo. IV. c. 105. 

43 Geo. nr. c. 166. 3 Goo. IV. c. 97. 

64 Geo. III. c. 156. 6 Geo. IV. c. 37. 

66 Geo. III. c. 64. 


The last Statute was possed on Juno 9, 1818, IT Sc 12 Viet. c. 20, 
‘'An Act to authorize for one Tear and to the end of the then next 
Session of Pnrliaratuit the Itemcivol of Aliens fiem the Realui.” 

Homer's Memoirs, vol. ii. p. 522, Speech on the Alien BUI, 1816, 


VOL. I, 


Y 



322 


INTERNATIONAL LAW. 


CHAPTER XL 

RIGHT TO A FREE DEVELOPMENT OP NATIONAL 
RESOURCES BY COMMERCE. 

CCXXI. This Right (ft) is little more than a consequence 
from Avhat has been already stated with respect to the free 
navigation of the ocean, and the exceptions which Inter- 
national Law has sanctioned in the case of particular portions 
of the ocean. The general law as to the perfect liberty of 
■commerce incident to every nation is forcibly and truly stated 
by Grotius (6 ) : “ Quominus gens qumque cum quavis gente 
“ seposita comraei*cium colat, impediendi nemini jus cst ; id 
enim permitti interest societatis humanae ; nec cuiquam 
damno id est : nam etiam si cui lucrum speratum, sed non 
“ debitnm, decedat, id damni vice reputari non debet.” 

The extravagant pretensions of Spain and Portugal to 
exclusive commerce with the East and West Indies, and 
their pi'actical abandonment, have been discussed in a former 
chapter. It is, however, perfectly competent to any nation 
to make what regulations it pleases with respect to its own 
commerce, to admit every nation equally to it, to exclude 
nations from it, to admit some under favourable and others 

(a) “ Oomnieitaum cum Turcis vetituiu dicere lege oinnes videntur. 
Kt mihi tameu non libet focilo disciidere a regida certissima Juris 
lientiunj, quod constituit commercia, nec di8tiugiut aliqiud de flenlibua." 
— Albrneua Gent. Advoc. Jlispan, cc. 26, 26. 

Gt otitis, 1. ii. c. 2, 6, 

Marf^eiis, 1. iv. c. ill. fl. 186. 

KlUbcr, 8. 69. 

Masse, Lv Droit commercial dans see rapports avec de Droit les Gens 
et le Droit cioil, t. i. 1. ii. tit. i. ch. i. (ed. 1874), p. 05. 

{h) L. ii. c. 2, 13, 6. 



DEVELOPMENT OK NATIONAL RE80UK0ES. 323 

under unfavourable conditions, unless, indeed, such oinginal 
liberty be curtailed by the express provisions of a Treaty. 

A nation has the same power of restricting commerce with 
regard to its distant pro^nnees and colonies. Every colony 
almost has, at one time or other, been confined to commercial 
intercourse with its mother country, or to some great privi- 
leged company of that country. Every page of the history 
of colonial dependencies shows with what rigour this mono- 
poly has been exerted by the mother country in time of 
peace, and wth what jealousy the forced relaxation of such 
monopoly in time of war by one belligerent in favour of 
neutrals, has been regarded by the other belligerent. Eng- 
land has steadily denied to the neutral the right of carrying 
on that commerce with the colonies of the belligerent in time 
of war from which it had been excluded in time of peace. 
But this subject belongs to another part of this work. 

The colonial monopoly, that fruitful source of wars ” 
(Mr. AVheaton writes in 1 845), “ has nearly ceased ; and with 
“ it the question as to the right of neutrals to enjoy in war 
“ a commerce prohibited in time of peace ” (c). 

The whole stattis of Consuls is considered in a later por- 
tion of this work (</). 


(c) Ilisf . pp. 769-60. 

{<1) Et vide ante, ch. ii. §. xiii. 




324 


INTEBNATIONAL LAAV. 


CHAPTER XIL 

KIGHT OF ACQUISITION. 

CCXXIT. In tlie discussion upon the Rights of Terri- 
torial Inviolability, the fact of rightful Possession has been 
assumed («). “ Totum autcm jus ” (the Roman lawyers say) 
“consistit aut in adquirendo, aut in conscrvando, aut in 
“ minucndo. Aut cnim hoc agitnr, qucmadmodum quid 
“ cujusque fiat ; aut quemadmiKlum quis rem vel jus suum 
“ conservet ; aut quoiuodo alienct aut amittat ” (/>). 

Before, however, we enter upon the consideration of the 
manner in which Acquisitions arc made by a State, it seems 
expedient to offer some observations upon the nature of— 

1. Possession {possessio ) ; and of 

2. Property {proprietas), or Dominion (dommiurn). 

The Roman Law (c) is the repository from wdiicli all 


(«) “ Les Icrritoii’es de VJSurrpe ont appropri^^s & cbaquo n-alion & 
la .suite do i-uvolutiona successive^, dans lesqnellea la force, puis la marche 
lente ct loiuqne des (5v6u(‘nients, ont eu plus d’influcnco quo le droit. 
L'iuvnsioii dus peuples du nord dans lo raonde roinain ; plus tard, la rd- 
union des diffdrentes petites puissances de la Alodalild en Etats plus foils 
et moins nonibreux, sent, dans ce tin vail, Ics deux faits priiicipanx. 
Pendant ce long etqiace de temps, et depuis, des tnuisformatinus divorses, 
des traitds nouihreux, se sent succddds,et tout linit par constitaer le terri- 
toire des Etnts aciuels. 

“ 11 scrait inutile do disenter surlaldgitimitd des premieres occupations 
qiii se rencontrent & I’origine de ces Etats.” — De« Mmjetu ^acquit'ir h 
l)ommne intemationol, par Styhie Oriolan, s. Ixi. p. 42. 

(6) Z)i>. 1. i. t. iii. 41. 

(o) WamkHmg, Inatit, Juris Horn. IMvati, 1. ii. c. i. t. iii., c. ii. t. ii. 

IhKhia, Paudektm, Kap. 2. 

MaehUejf, Zteiond, Thai, Kap. 1, t. i. . 

Savigny, liesitsreeht. 

Miihlfnhriirk, Doefrina Pandect, 1. ii. c. 2. . 




BIGHT OF ACQ018ITI0N. 


325 


jurists, whether writing on private or public law, have 
borrowed their elementary learning upon this point ; and it 
is with truth that a very distinguished modern jurist observes, 
** Fossessionis notio atque indoles, cjus acquisitio vel amissio, 
“ accuratius a jurisconsultis Komunis definita) sunt, ut ca jam 
« non facti solum sed juris quoque esse dicatur ” (d). 

CCXXIII. The generic term possession branches forth 
into various species (c). 

That person is properly said to possess a thing who both 
actually and corporally retains it, and who desires and in- 
tends at the same time to make it his own. 

That person who, having no such desire or intention, by 
mere corporal act retains a thing, is, only in a gross and in- 
accurate sense, said to possess it. \ s, 


(d) WarnkSniy, Jnst4t, Juris Eomani Prieuti, a. 296. 
lu T/ie Fatiut, 5 C. Pob. Adui. Pejt. pp. 11-1-1.0, Lord Stowell applies 
tlie rules rolatinj!' to Poss'ession, &c. iu the Institutes ouil Digosts to decide 
a question of International Law. 

(c) Dijf. xli. 2 ; “ De acquivenda vel amittciida pussosRione,” 

16. xliii. 17 : ** UH posadelis.” 

Itist. ii. t. vi. ; " De uaucapione." 

“PossiiisBio appellata est, ut et Lahio nit, a .sedibus, quasi p(.)silio, 
quia naturaliter tenetur ab en, qui ei iusistit; qitam Grsoci Karoxriv 
dicuut."— xli. 2, 1. 

“Qui jure faniiliaritatis amid fnudiim ingi-edilur, non videtur possi- 
dore, qiua non eo animo ingrtwsiis est, ut possideat, lic^et corpore iu fuodo 
8it.”-76. 41. 


“ Quod meo nomine possidco, possum et alieno uomino possidere ; nee 
enim muto mihi causam possessiouis, sed desinn possidere, et alium pos* 
sessorem tninistm-io meo facio. Nee idem est possidere, ot alieiio nomine 
possidere ; nam is poa'iidet, cujus uuniine poasidotur. Procurator olienm 
possessioiiis preestat juinistoriiuu.” — 76. 18. 

“ Justa enim an injushi adversns ceteros poast.'ssio sit, in hoc interdicto 
nihil refert ; qualiscnuque enim possessor hoc ipso, quod possessor est, 
plus jiuis habet, quam ille, qui non poaddet.” — 76. xliii. 17, 2. 

“ Cre^tores misaos iu poasessiouem rei servaud® causa iutei'dicto uti 
possidetis utinon posse; ct inerito, quia non possident. Ideinqueetin 
coteris omnibus, qui custodi® causa inissi sunt iu possessionem, diceudum 

®»t;’-76.17,8,8. 

“Dejicitur is, qui possidet, sive civilitor, sivc naturaliter "poasideat r 
1 poasessio ud hoc interdictum pertinet.”— 76. -vliii. 16; 



326 INTERNATIONAL LAW. 

That person who retains a thing in the conviction that he 
is the rightful possessor of it, though he be mistaken, and be 
not the rightful possessor, may acquire, by the operation of 
time, a legal title to it, and be protected by law in the pos- 
session of it (ad usucapiouem possidet). 

. There are, therefore, three species of possession : 

1. Natural possession, or the bare seizing and detaining a 
thing (naturalis possessio, sive nuda rei detentio). 

2. Legal possession, by act and intention (animo et facto, 
de droit et de'fait, possessio proprie sic dieted) (f). 

3. Possession by operation of time (civilis possessio). 

CCXXIV. Dominion (dominium) is the fullest right 

which can be exercised over a thing ; the right of property, 
properly so called. 

According to the ancient Homan Law, dominium could 
only be acquired by a Homan citizen, and through the 
medium of certain strict formalities (“ in mancipio habere, 

ex jure Quirilium dominus ”). Hut the Prastor, following 
the dictates of nutursil equity (jns gentium), introduced a 
doctrine which, without these formalities, secured to tlie 
stranger (peregrinus), as well as the citizen, a dominion over 
the thing (in bonis, honitarium) which he had lawfully, and 
**jnre gentium ” acquired. 

Justinian abolished altogether this distinction (^) between 

(/) “ Si me in vacuam possessionem fundi CorneliajIRSiberis, ©K® 
tarem me in fundum Semproninnum missum, et in GorneJiauuin iero, non 
acqtdrem pu&sessionem, nisi forte in nomine tantum eiTaverimus, in corport? 
consenserimus. Quoninm autein in corpora non consensorimus an a le 
tamen recedat possessio ? quia animo deponerc et mutare nos possessiojicm 
posse et CelsQS et Marcellns scribunt, dnbitari potest ; et si nniino acquiri 
possessio potest, numquid ctiam acquisita est? sed non puto eTrantein 
acquirers, ergo nec amittet possessionem qui quodammodo sub conditione 
recessit de possessioiie.” — Dig. zU. 2, 34, 

“ Differentia inter dominium et possessionem hmc est, quod dominium 
nibilo minus ejus manct, qui dominus esse non vult, possessio aiitem 
recedit ut quisque constituit nolle possidere. Si quis i^tur ea monte 
possessionem trodidit, ut postea ei resdtuatui^ desinit possidero." — 
Ih. 17 , 1 * 

(g) Cod, vii. 26 : “ De niido jure Quiritiuin tollendo.” 

Wamkdnig, Inslit. .7, E. 1. ii, ch. i. t, 3. 



KIGHT OF ACQUISITIOif. 


327 


the ancient and the Praetorian Equity, and established uni- 
versally the dominium jure ffentium. The law, however, still 
recognized certain inodes of acquiring property : these were 
citlier according to the jas gentium or the jus civile. 

The principal modes under the jus gentium were : 

1. Occupation (occupatio). 

2. Natural increase {accessio). 

3. Transfer (traditio) ; cither 
r a. inter vivos, 

I /9. or by testament or succession. 

The mode of acquisition under thejfas civile was, • 

1. By the effect of a law Qege). 

2. By a judicial SQntenQe (adjudicatione). 

3. By the operation of time {vetustaiis auctoritate^ usu- 
copionCy prcBscriptione). 

Dominion might suffer an interruption by the invasion of 
another person {usurpatio'). 

1, By an overt act on the part of an individual {natu- 
ralis usurpatio ) ; 

2. By an adverse decision of a legal tribunal (civilis usur- 
patio). 

As Dominion is acquired by the combination of the two 
elements of fact and intctitiony so, by the dissolution of these 
elements, or by the contrary fact and intention, it may be 
lost (A) or ^[^guished (/). 

The applid^lbn of these principles of Roman jurisprudence 
to the system of International Law appears to have been 
readily' made by Grotius and other jurists ; and without 
some acquaintance both with the language and doctrine of 
the Roman Law upon the subject of Possession and Domi- 
nion, it is impossible correctly to understand and justly to 
appreciate the writings of commentators upon International 
Law. 

(A) " Quemadinoduin nulla poasosHio acqtiiri nisi animo et corpora 
potest, ita nulla omittitar nidi in qoa ntruiuque in coutrarium actum 
xli. 2, 8. 

(i) V^pad. 



328 


IKTEBNATIONAL LAW, 


It will be well to recite, as a preface to the discussion upon 
the Rights of Acquisition by a State, the doctrine and lan- 
guage of Bynkershoek : “ Postquain Lex ecrtos dominii 
“ acquirendi inodos pracscripsit, hos sequemur ” (A). From 
Grotius (/) wo leam that these inodes of Acquisition were : 

1 . By occupation (occupatione derelicti). 

2. By Treaty and Convention {pactiunibus). 

3. By Conquest 

And if Acquisition by Accession and by Prescription be 
considered as corollaries to Occupation, and all cases of 
Transfer be held to fall under the category of Treaty and 
Convention, the cmuucration may be considered as suffi- 
ciently complete 

CCXXV. But Acquisition itself is divided into two 
classes: Original {ifapiisitio originaria) and Derivative 
{derivalivsa, facto hominis vel facto legis). ^ 

Under the former liead may be classed Acquisition by 
Occujiation, Accession, and Prescription : under the latter, 
all Ac<iuisition8 by 'Preaty or Convention, including Transfer 
{traditio). Gift, Sale, Exchange, Inheritance by Testament 
or Succession, and Acquisitions by Conquest (w). 

(k) O/tfrOf iii. 264: “]3o Doniinio Maris." 

(/) Lib. ii. R. ix. s. 11, p. S6B. 

(;w) “ Doniimumque renim ex naliurali pjfsessione ctepisse, Ntova 
fiUus ait, ojusrpie rci vesti^um remancre in bis, qua) terra, niari, cmloque 
capiuritur ; nam brec prrttiou.s (‘oruni fieri, qui priiui pos»e.S8ioiU'in eovuni 
upprehenderini. IIcmu IjcIIo et insula in inari cnata, et gemuiiu, 

lapilli, margariiiO in liltoribiis inventa) ejus fiunt, qui primus uoriuu 
possessionem nacltis est.” — /%. xli. t. ii. 1, i. 

“ Bed quumadmodum, cum Theatruai commune sit, recte tameu dici 
potest ejus esse oum locum qucni qiiisf|uo occiiparit : sic iu urbe muridove 
communi non adveisatur jus quo minus snuiu quidqiie cujusque sit.” — 
Cicero de Mn. 1. iii, c, 20. . - 

Sunt autem privata nulla natura : sod aut veteri occupatione, iit qui 
quondam in vacua veneruut : aut victoria, Ot qui bello putiti siiut ; aut 
lege, jmcUoiie, conditionc, sorte, ex quo tit ut oger Arpinas Aipinatum 
dicatur: Tusciilanus Tiusculanoriim: siniilisque est privatarmapossessionum 
descripiio, ex quo quia suiun cujusque tit, eoruni, qum natura fuerunt 
communia, qucjd cuique obtigit, id quisque tenoat: eo si qui sibl plus 
appotet,' violaUt jus humanse socictatis.” — Be Of. 1. i. c. 7. 

(n) The oflbet of Ohristianity upon the doctrines of possession and 



EIGHT OF ACQUISITION. 


329 


CCXXVI. With respect to Original Acquisition, we 
have first to consider under this head the title which a nation 
acquires by occupation. Discovery, Use, and Settlement are 
all ingredients of that Occupation which constitutes a valid 
title to national acquisitions. 

CCXXVII. Discovery, according to the acknowledged 
practice of nations, whether originally founded upon Comity 
or Strict Riyht, furnishes an inchoate title to possession in 
the discoverer. But the discoverer must either, in the first 
instance, be fortified by the public authority tmd by a com- 
mission from the State of which he is a member, or his dis- 
covery must bo subsequently («) adopted by that State ; 
otherwise it does not fall, with respect to the protection of 
the individual, under the cognizance of International Law, 
except in a limited degree; that is to say, the individual 
has a natural title to be undisturbed in the possession of 
the territory which he occupies, as against all third Powers. 
It will be a question belonging to the Municipal Law of his 
own country, whether such possessions do uot belong to her, 
and whether he must not hold tliem under her authority and 
l)y her permission. Such would be the case with the pos- 
sessions of an English subject. But, as far as International 

property, or doiiiinion, was as l)eiie{icial as it was upon all other doctrines 
which are conservative of social order aud productive of human happiness. 
Ascribing to (lod *Hhe world and all that is therein,” it nevertheless 
consecrated the rights of Property ; and thougli for a season the first 
professors of CJirisliniiity had iheb* goods in common, and no private 
property, yot this was an accidental arrangement, growing out of tlio 
particuiar e.vigencies of a particular epoch, and ceasing when they ceased. 
The arraiigenient, moreover, while it lasted, was voluntary ; and even 
during its contiuuanco. a respect for the strict rights of property was 
cfirofidly inculcated ated preserved. — See Troj)lQngf dc Vlnjiaence du 
Christianmne mr le Droit civil des RoviainSj p. 131. 

(o) RiUihabitio coiislituit tuum uegotium, quod ah initio tuuni non 
erat, sod tui contemplatione gestum.” — Dig» iii. vi. 0. De Aegutiis 
gestis. 

Sed etsi non vero procuratori solvam, ratum anteni hahet dominus, 
quod solutnm est, liboratio contingit: raii enim hithdio mundato cowi- 
poratnr!^ — Dig^ xlvi. 3, xii. 4, do Solut, : cf. Dig. xliii. 16, i. 14, de vi et 
de vi arm. 



330 


INTERNATIONAL LAW. 


Law is concerned, Vattel, following the rules of natural 
equity incorporated into Boman Jurisprudence, says justly ; 
“ Tons les hommcs ont un droit 6gal aux choses qui ne sout 
“ point encore tomb^s dans la propri6t4 de quelqu’un ; et 
“ ces choses-E apparticnuent au premier occupant. Lors 
** done qu’une nation trouve un pays inhabit^ ct sans maitre 
“ die pent legitimement s’en emparer ; et aprds qu’elle a 

sufbsammentmarqu4 savolont^ k cet 6gard,un autre nc peut 
“ I’en dcpouiller. C’est dnsi que des navigatcurs, allant d la 

decouverte, munis d’une commission de leur souverain, ct 
« rencontrant des ties, ou d’autres terres dcsertes, en ontpris 
“possession au nom de leur nation: et communcnicnt ce 
“ titre a 6te respecte, pourvu qu’une possession rcdle I’ait 
“ suivi de prds ” (/»). 

CCXXVIII. In the various discussions which took place 
between the United States and Great Britain with respect 
to the right of the Oregon Territory, .^e title resulting from 
discovery was attempted to be pushe^i!^ beyond the limits 
of this doctrine, even to the extent of maintaining, that the 
.first discovery by an uncommissioned merchant-ship gave 
priority to the claims of America upon these regions. But 
jsuch a position appeals opposed to all authorities upon Intcr- 
Inational Law, and it was steadily denied by Great Britain. 

CCXXIX. The inchoate title, then, must in the first place 
be fortified by the previous commission or confirmed by the 
subsequent Batification of the State to which the discoverer 
belongs. So far, according to the practice of nations, 
strengthened in some degree by the principles of natural 
Law and the reason of thing, the fact of authorised dis- 
covery may be said to found the right to occupy. 

“ It is to be observed, then ” (Lord Stowell says) “ that 
“ all corporeal property depends very much upon occupancy. 
“ With respect to the origin of property, this is the sole fouu- 
“ dation : quod nuUius est ratione naturali occupanti cmceditur. 


(p) “ Oommeut nne nation s’appoprie an pays desert.” — Vaittl, torn. i. 
1. i. c. 18, 8. 207. 



OCCUPATION.— ORIGINAL ACQUISITION. 331 

« So with regard to transfer also, it is universally held, in 
“ all systems of jurisprudence, that to consummate the right" 
“ of property, a person must unite the right of the thing with 
possession. A question has indeed been made by some 
writers, whether this necessity proceeds from what they 
« call the natural law of nations, or from that which is only 
“ conventional. Grotius seems to consider it as proceeding 
“only from civil institutions. Pvffendorf and Potkier go 
“ farther. All concur, however, in holding it to be a ne- 
“cessary principle of jurisprudence, that, to complete the 
“ right of property, the right to the thing and the possession 
“ of the thing itself should be united ; or, according to the 
“ technical expression, boriwed either from the civil law, or, 
“ as Barhegrac explains it, from the commentators on the 
“ Canon Law, that there should be both the jus in rem and 
“ the jus in re. Tliis is the general law of property, and 
“ applies, I conceive, m less to the right of territory than to 
“ other rights. Evenj^ newly discovered countries, where 
“ a title is meant to be established for the first time, some 
“ act of possession is usually done and proclaimed as a notifi- 
“ cation of the fact. 

“ In transfer, surely, where the former rights of others are 
“ to be superseded and extinguished, it cannot be less neces- 
“ sary that such a change should be indicated by some public 
“ acts, that all who are deeply interested in tlie event, as the 
“inlabitants of such settlements, may be informed under 
“whose dominion and under what laws they are to live. 
“ This I conceive to be the general propriety of principle on 
“ the subject, and no less applicable to cases of territory, 
“ than to property of every other description ” (y). 

CCXXX. The next step is to consider what facts co n- 
O ccupatiojaA , what are the signs and emblems of 
Ks KavmgnSEer^^ ; for it is a clear principle of Inter- 
national Law, that the title may not be concealed, that the 
intent to occupy must be manifested by some overt or external 


(j) The Fatm, 6 C. Rah, Adtii, Rep. pp. 114-116. 



332 


INTEUNATIONAL LAW. 


acts. The language of the commentators is clear and full 
upon this point. 

“ Simul discimns quomodo res in proprictatem iverint : 
“ non animi actu solo ; neque enim scire alii poterant quid 
“alii suum ease vellent, ut co ahstinerent; et idem vclle 
*‘plures poterant: sed paefo quodam aut expresso, ut per 
“ divisioncin, aut tacito, ut per occupationcm ” (r). 

Again : 

“ Requiritur autem corporalis qutedam possessio ad doini- 
“ niuin adipiscendum ” (.?). 

And again : 

“ Praeter aninntm possessionem desidero, sed qualcmcim- 

que, quas probet, me nec cor pore desiiso possidere ” (f). 

These acts, tlien, by the common consent of nations, must 
be use of and s ettlement in the discovered territories. 

USSkxi. T^J' aT'ull promulgated in 1454, Pope Nicho- 
las V. gave to the crown of Portugal the Iilm]i>irc of Guinea, 
and the pow'er to subdue all the barbarous nations therein, 
and prohibited the access of all other nations thereto {/<), 
By a Bull promulgated in 1493, Pope Alexander VI. 
granted to the crown of Spain all lands ali*cady, or here- 
after discovered, lying to the west and south of the Azores, 
drawing a line from one pole to the other, a hundred 
leagues from the west of the Azores. This pontifical decision 
was subsequently ratified by the Treaty of TordesiUas in 
1494 {x), and confirmed by Pope Julius in 1500, These Papal 
grants to, and arbitrations between, Si)ain and Portugal, as 
well as the conventions on this subject between the lay 

( Powere themselves, were always utterly disregarded by Great 
Britain, France, and Holland, though not altogether aban- 
doned by the grantees, till their futility had been demon- 


(}') Greitus, i. ii. c. ii. 2, a. 5. 

(») Gratius, 1. ii. c. viii. 8. 3. 

(<) Bi/nkershoek, dfi Bom, Maru^ c. 5. 
(m) GmUkuTf Kap. i. 6, Kap. ii. 2, s. 10, 
(x) Martens, Bee. t. i. p. 372. 



OCCUPATION. — ORIGINAL ACQUISITION. 333 

stratod by the result of many sanguinary wars (y). Vattel 
is very clear upon this point : ** Mais c’est unc que’stion de 
« savoir si unp nation pent s’appropricr ainsi, par une simple 
« prise de possession, des pays qu’cUc n’occupc pas 
“ellcment, et s’en reservcr de cctte mani^re beaucoup 
“ plus qu’elle n’est capable de peupler et de cultiver. II 
“ n’est pas difficile de decider qu’unc parcille pretention 
“serait absolument contraire aii droit naturel, et opposde 
“ aux vues de la nature, qui, destinant toute la tcrre aux 
“ bcsoins des hommes en general, ne donne d chaque peuple 
‘Me droit de s’approprier un pays que pour lea usages 
“qu’elle on tire, et non pour cmpccher que d'autres en 
“ profitent. Le droit des gens ne reconnaitra done la pro- 
^‘priete et la souverainete. d’une nation (pie sur les pays nides 
“ qu’olle aura occupds reellement et de fait, dans lesqiiels clle 
“ aura forme un (itablisscment, ou dont elle tirera un usage 
“ actuel (r). En effet, lorsque des navigateurs ont rencontre 
“des pays deserts, dans lesquels ceux des autres nations 
“ avaient dress^. en passant quclque monument, pour marquer 
“leur prise de possession, ils ne se sont pas plus mis en 
‘•'peine de cette vain c(*retnonie que de la disposition des 
“ papes, qui partagerent unc grande partie du tnonde entre les 
“ conronnes de Castille ct de Portugal ” («). Indeed, writers 
on International Law agree that Use and Settlement, or, iu 
other words, continuous use, a re indispensable elements of 
occupation properly so called. The mere erection of crosses, 
landmai'ks, and inscriptions is ineffectual for acquiring or 
maintaining an exclusive title to a country of which no real 
use is made (i). 


Cv) Even iu modern times Spiun has claimed the north-vrestem coasts 
of America upon the sole ground of having first discovered tliom. 

(s) “Quam est hie fortunatns putandus, cui soli vere licet omnia, non 
QuirUmm, sed aapientium jure, pro suis viudicure ! noc civili uexo, sed 
emmum kge mtwa quoe vetat ullam rem esso cujustiuam, nisi ejus qui 
tradwe et uH sciat.”— Cfco-o, de RemMca, 1. i. c. 17. 

(“) L. i. c. xviii. 8. 208, 

to) KUiber, ^ 126. 

UWw. i. c. 4. 



334 


INTEBNATIONAL LAW. 


CCXXXII. Bttt when occupation by Use and Settlement 
has folfowed upon discovery, it is a clear proposition of 
Law, that there exists that corporeal possession {corporalu 
queedam possessio (c), detentio corporalis (d) ) which confers 
an exclusive title upon the occupant, and the Dominium 
eminens, as Jurists speak, upon the country whose agent 
he is. 

CCXXXIII. Kext arises the difficult question, as to how 
much territory is occupied by such a settlement? to what 
extent must the corporeal possession go, in order to give a 
title to more than is actually inhabited ? (e) — what, in fact, 
is the International doctaineof (ratio vicinitatk) ? 

CCXXXl V. Vattel says, that when seveml nations possess 
and occupy a desert (/) and unoccupied land, they should agree 
upon an equitable partition between themselves ; if they 
cannot do this, each nation has a right of empire and domain 
in the parts where they have first made their settlements. 
This remark, however, does not afford much assistance to- 
wards a solution of the difficulty (y), 

111 truth, it is impossible to do more than lay down a 
broad general rule, aided in some degree by the practice of 


(c) Orctm», 1. ii. c. viii. s. 3. 

[i) “ Galtura ntvjue et cura agri possessionem quam maxime indirat. 
Neque euim desidero, vel dosideraw unqium, lit tanc domum wdeatur 
quis poasidere, d res mobiles, ad instor testndimun, dorso fernt suo, vel 
rebus immoWlibus incubet corpore, ut gallinis solent incubaro ow. 
Pweter animam possessionem dc4doro, sod qualeracunque, qu» probet, 
me nec corpore desiisse poa.sidere. .... Igitur quicquid dicat Titins, 
quicquid Msevius, ex possesaione jure natiirali et gentium suspenditnr 
dominium, nisi pacta domiuiam,citra possessionem, defendant, utdcfendit 
jus cujusque civitatis proprium.” — Bynhamhoeli, Op. t. vi., Ik Dominto 
Marts, pp. 3(30, 361. 

(e) “Et adipiscimnr possessionem corpore et animo, neqiie per so 
animo, aut per se corpore. Quod autem diximus et corpore et ammo 
acquirere nos debere possesmonem, non utiquo ita accipiendum est, ut qui 
fundum possidem velit, omnes gleba.<i dreuroambuiet, sed snfficit quam- 
libet partem ejus fundi introire, dum hac mente et cogitalaone sit, iiti 
totum fundum osqiie ad terminum velit possidere.”— 2%. xli. t. ii. 3, 1. 
(/) Ibid. 7,5. 

(y) Vattel, \.ii. 




OCCUPATION. — OBIOINAL ACQUISITION. 335 

nations, to be applied to each case as it may arise, and mo- 
dified in some degree by any particular circumstance which 
may belong to it. 

CCXXXV. Some natural circumstances, however, seem 
to distinguish the rule in its application to a continent or on 
island. 

With respect to a continent. — The occupation of a portion 
of the sea-coast gives a right to the usual protecting limit at 
sea, which is holden to exist in all old countries. The right of 
dominion would extend from the portion of the coast actually 
and duly occupied inland, so far as the country was unin- 
habited, and so far as it might fairly be considered to have 
the occupied sea-hoard for its natural outlet to other nations. 

CCXXXVl. A remarkable instance of an International 
disimte, arising out of the doctrine of contiguity, is afforded 
by the discussion, which arose upon the interpretation of 
the language of the Treaty of Utrecht relating to tlio 
cessions of France to England. The expressions were as 
follows ; 

“Dominus Rex Christianissimus eodem quo pacis prtc- 
“sentis Ratihabitiones commutabuntur die, Dominm Regime 
Magnae Britannia: litteras, tabulasve solcnnes ct authen- 
“ticas tradeudas curabit, quarum vigore, insulam Sancti 
“ Christophori, per subditos Britannicos sigillatim dehinc 
“ possidendam ; Novam Scotium quoquCf sive Acadiam totanij 
“ limitibus suis antiquis comprehensamf ut et Portus Regii 
“ urhem, nunc Annapolin regiam dictam, ceeteraque omnia in 
“ istis regionibus qua ab iisdem terris et instilis pcndentpxoA cum 
“ earundum insularum, terrarum,et locorum dominio,proprie- 
tate, possessione, et quocunque jure sive per pacta, sive alio 
‘ modo qusesito, quod Rex Christianissimus, corona Gallim, 
aut ejusdem subditi quicunque ad dictas insulas, terras et 
“ loca, eorumque incolas,hactenus habuerunt, Reginas Magnao 
‘ Britannim ejusdemque coronae in perpetuum cedi constabit 
et transferri, prout eadem omnia nunc cedit ac transfer t 
„ Christianissimus ; idque tarn ainplis modo et forma, 
ut Regis Christianissimi subditis in dictis maribus, sinubus, 



336 INTERNATIONAL LAW. 

aliisque ad littora Novas Scotiae, ea nempe quro Eurnm 
respiciunt, intra triginta leucas, incipiendo ab insula, vulgo 
" SaMe dicta, eaque inciusa et Africum versus pergendo, 
“ omni piscatura in posterum interdicatur ” (A). 

The words in Italics led to a variety of demands on the 
part of Great Britain, with respect to the territories included 
under these words. The French replied: “Les mots de 
limitibm et de comprehensam ii’ont jamais places nulle- 
“ part pour donner de I’extension. La phrase (ut et) que 
“ citent les Commissaires anglois ne donne aucunc extension 
“ d la cession, et ne peut pas operer sans Ic dire, et par une 
“ vertu secrete, quo ce qui n’6toit pas Acadie avant le traitc 
soit devenu Acadie apres le traits ; ui que les pays eircon- 
“ voinins, ou les confine de I’Acadie, en soient devenus dcs 
ddpendances ; ni que I’accessoire soif six ou huit fois plus 
“ considerable que le principal. Jamais on ne prouvera, que 
par les appartenances et les dcpendanccs d’un pays, on 
“ doive entendre ceux qui cn soht voisins. Proximite et 
“ ddpcndance sont deux idees differentes, distinctes; leurcon- 
“ fusion entraineroit celle des liraites de tons les Etats ” (*). 
The dissensions on this subject were the principal cause of 
the war which broke out in 1756. A similar quarrel arose 
with respect to the provinces claimed from Germany by Iho 
Chambei’S of Reunion of France. By the following words 
in the 12th Article of the Peace of Miinstcr (1648)— 
Supremum dominium, jura superioritatis uliaque omnia in 
“ Episcopatus Metensem, Tallensem et Viradunensem, nr- 
"besque cognomincs eorumque Episcopatuum districtus," 
&c., it was contended that the throne of France was exempted 
from various feudal liabilities to the German Empire, to 
which these bishoprics had been previously subject, but, as 
Gunther (J) remarks, without any foundation in justice. 


(A) Treaty of JJtrtscM, 1713 : — Sn/maugs, Corpus Jur, Oent, Academ. 
vol. u. p. 1832. 

(t) M6}noires des Cmmnissaires de S. M. TreS’&irilieime, etc. tom. i. 
JR, 1, pp. 64, 02, 183. 

(j) Europ. Vcdkeireehtf vol. ii. p, 180. See also Bolinybreike's lifters 
on the Study and Use of llistory, 1. vii. p. 278 (ed. 1762). 



337 


OCCCrATION. — 0BI6INAL ACQUISITION. 

The United States of America, dmiug the pendency of 
the negotiations with England, with respect to the Oregon 
boundary, asserted “ that a nation discovering a country, by 
“ entering the mouth of its principal river at the sea-coast, 
must necessarily be allowed to claim and hold as great an 
extent of the interior country as was described by the course 
« of such principal river and its tributary streams ” (A). 

But this proposition was strenuously denied by Great 
Britain upon various grounds:—!. That no such right 
accrued at all to mere discovery. 2. Not to discovery by a 
-private individual. Great Britain “ was yet to be informed ” 
(she said) “ under what principles or usage, among the 
“ nations of Europe, his having first entered or discovered 
“ the mouth of the River Columbia, admitting this to have 
“ been the fact, was to carry after it such a portion of the 
“interior country as was alleged. Great Britain entered 
“ her dissent from such a claim ; and least of all did she 
" admit that the circumstance of a merchant vessel of the 
“ United States having penetrated the coast of that continent 
“ at Columbia River, was to be taken to extend a claim in 
“ favour of the United States along the same coast, both 
“ above and below that river, over latitudes that had been 
“ previously discovered and explored by Great Britain her- 
“ self, in expeditions fitted out under the authority and with 
“ the resources of the nation ” (/). 

CCXXXVII. If the circumstances had been these, viz. 
that an actual settlement had been grafted upon a discovery 
made by an authorised public officer of a nation at the mouth 
of a river, the law would not have been unreasonably applied. 

There appears to be no variance in the opinions of writers 
upon International Law as to this point. They all agree 
that the Right of Occupation incident to a settlement, such 
as has been described, extends over all territor y ac^ llya nd 
^ ■ iM g - O pcnpied, over all th atJfL.iBaiaEB*t^th^ real use 


(A) Slate Paptre, vol. iii. p. 606. Twm, Oreifon Queetion Exaiimied, 
(0 State Papen, vol. xiii. p. 609. 

VOL. I. 


Z 



338 


I3TTEBNATI0NAL LAW. 


^of the settlers, although the use be only inchoate, and not 
fully developed ; over all, in fact, that is necessary for the 
integrity and security of the possession, such necessity being 
measured by the principle already applied to tlie parts of the 

t ea adjacent to the coasts, namely, “ ibi^nitur impertum uM 
‘Jinitur armorum »m.” The application of the principle to 
a territorial boundary is, of course, dependent in each case 
upon details of the particular topography. 

Martens, discussing ^^jusqu’oil s’dtend I’occupation,” 
writes with as much precision and clearness upon the point 
as the subject will admit of. *^Une nation qui occupe un 
district doit 6tre cens6c avoir occupe toutes les parties 
“ vacantes qui le composent ; sa propriety sMtend mcine sur 
les places qu’clle laisse incultes, et sur celles dont elle 
“ permet I’usage a tous. Les limites de son territoire sont 
“ ou naturelles (tellcs que la mer, les rivieres, les eanx, les 
“ montagnes, les fovets) ou artificielles (telles que des bar- 
" ri^res, des bornes, des poteaux, etc.) Les montagnes, les 
forets, les bruy^rcs, etc., qui separent le territoire de deux 
nations, sont censes appartenir h chacune des deux jus- 
** qu’ti, la Hgne qui forme Ic milieu, d inoins qu’on ne soit 
“convenu de r^gler differemment les limites, ou de les 
“ neutraliser. A defaut des limites certaines, le droit d’une 
“ nation d’cxclure des nations etraugercs des terres ou lies 
“ voisines ne s’etend pas au-delii du district qu’elle cultive 
“ ou duqucl du moins elle pent prouver I’occupation ; i 
" moins que, de part et d’autre, I’on ne soit convenu de ne 
“ pas occuper certains districts, ilcs, etc., en les declarant 
“ neutres ” ( m), 

CCXXXVIII. This middle distance mentioned by 
Martens appears, in cases where there is no sea-coast boun- 
dary, to be recognized in practice. 


In the negotiations between Spain and the United States 
of America respecting the wes tern b oundary of Louisiana, 
the latter country laid down vmli' 'aihjifiWSy ' 


(m) MnriiTU, Droit (its Gms, 1. ii. c, 1, a. 38. 



OCCUPATION. — OBIGINAL ACQUISITION. 


339 


certain propositions of law upon this subject^ which fortify 
the opinion advanced in the foregoing paragraphs. The 
“ principles ” (America said on this occasion) ** which are 
applicable to the case, are such as arc dictated by reason, 
« and have been adopted in practice by European Powers 
« in the discoveries and acquisitions which they have re- 
“spectively made in the New World. They are few, 
simple, intelligible, and, at the same time, founded in strict 
“justice. The first of these is, that when any Euro 2 )can 
“nation takes possession of any extent of sca-coast, that 
“possession is understood as extending into the interior 
“ country, to the sources of the rivers cmjjtying within 
“that coast, to all their branches, and the country they 
“ cover, and to give it a right, in exclusion of all other 
“nations, to the same. (See Memoire de VAmerique, j). 
“ 1 16.) It is evident that some rule or principle must 
“ govern the rights of European Powers in regard to each 
“ other in all such cases : and it is certain that none can 
“ be adopted, in those to which it applies, more reasonable 
“ or just than the present one. Many weighty considera- 
“tions show the jiropriety of it. Nature seems to havej 
“ destined a range of territory so described for the same • 
“ society ; to have connected its several parts together by 
“ the ties of a common interest, and to have detached them , 
“ from others. If this princijdc is departed from, it must 
“ be by attaching to such discovery and possession a more 
“ enlarged or contracted scope of acquisition ; but a slight 
“ attention to the subject will demonstrate the absurdity of 
“ cither. The latter would be to restrict the rights of an 
" European Power, who discovered and took possession of a 
“ new country, to the spot on which its troops or settlements 
rested; a doctrine which has been totally disclaimed by 
“ all the Powers who made discoveries and acquired posses- 
sions in America. The other extreme would be equtilly 
improper; that is, that the nation who made such dis- 
covery should, in all cases, be entitled to the whole of the 
territory so discovered. In the case of an island, whose 

z 2 



340 


INTERNATIONAL LAW. 


extent was seen, which might be soon sailed round and 
" preserved by a few forts, it may apply with justice : but 
“ in that of a continent it would be absolutely absurd. 
“ Accordingly, we find that this opposite extreme has been 
“ equally disclaimed and disavowed by the doctrine and 
“practice of European nations. The great continent of 
“ America, north and south, was never claimed or held by 
“ any one European nation, nor was either great section of 
“ it. Their pretensions have been always bounded by more 
“ moderate and rational principles. The one laid down has 
“ obtained general assent. 

“ This principle ivas completely established in the con- 
“ troversy which produced the war of 1755. Great Britain 
“ contended that she had a right, foundeJT on the discovery 
“ and possession of such territory, to define its boundaries 
“ by given latitudes in grants to individuals, retaining the 
“ sovereignly to lierself, from sea to sea. This pretension 
“ on her part was opposed by I’rance and Spain, and it was 
“ finally abandoned by Great Britain in the Treaty of 1 763, 

“ which established the Mississippi as the w'esteni boundary 
“ of her possessions. It was opposed by France and Spain, 

“ on the principle here insisted on, which of course gives it 
“ the highest possible sanction in the jnesent case. 

“ The second is, that whenever one European nation 
“ makes a discovery and takes possession of any portion of 
“ that continent (n), and another afterwards docs the same at 
“ some distance from it, where the boundary between them 
is not determined by the principle above mentioned, the 
i*‘ middle distance becomes such of course. The justice and 
“ propriety of this rule is too obvious to require illustration. 

“ A third rule is, that whenever any European nation has 
“ ty|^quired a right to any portion of territory on that 
f eminent, that right can never be diminished or affected 
V by any other Power, by virtue of purchases made, by grants 

(n) As to the character of the early acqumtions made by the Kw* 
India Goinpany, see Speanh on Motdon relative to the S^pee^ fr^n tfte 
Throne, Burke e Worh, vol, iv. p. 101 and note. 



OCCUPATION. — OKIGI NAL ACQUl SITION. 


341 


« or conquests of the natives within the limits thereof. It 
“is believed that this* principle has been admitted (o) and 
“acted on invariably since tlie discovery of America, in 
“respect to their possessions there, by all the European 
“ Powers. It is particularly illustrated by the stipulations 
« of tlieir most important treaties concerning those posses- 
“sions and the practice under them, viz. the Treaty of 
“ Utrecht in 1713, and that of Paris in 1763. In conformity 
“ with the 10th Article of the first-mentioned Treaty, the 
“ boundary between Canada and Louisiana on the one side, 
“ and the Hudson Bay and North-western Companies on 
“ the other, was established by Commissaries, by a line to 
“ commence at a Caj)e or Promontory on the Ocean in 
“ 58® 30' north latitude, to ran thence south-westwardly to 
“ latitude 49® north from the Eciuator, and along that line 
“ indefinitely westward. Since that time, no attempt has 
“ been made to extend the limits of Louisiana or Canada to 
“ the north of that line or of tlmse Companies to the south 
“ of it, by purchase, conquest, or grunts from tlie Indians. 
“ By the Treaty of Paris, 1763, the boundary between the 
“ present United States and Florida and Louisiana was 
“ established by a line to ruu through the middle of the 
“ Mississippi from its source to the river Iberville, and 
“through that river to the Ocean. Since that time, no 
“ attempts have been made, by those States since their in- 
“ dependence, or by Great Britain bcfi)re it, to extend their 
“ possessions westward of that line, or of Spain to extend 
“ hers eastward of it, by virtue of such acquisitions made 
“ of the Indians. These facts prove incontestably that this 
“ principle is not only just in itself, but that it has been 
“ invariably observed by all the Powers holding possessions 
“ in America, in all questions to which it applies relative to 
“ those possessions ” (^j). 

, ^ J’bAnson v. Mackh>in»h, >S TT7/<'«A>w Mep. p. 643, 

amded by the Supreme Court of the U.S.. a.d. 1823, the practice and 
on this subject are fully considered. 
tl») iVepers, \ol. v. pp. 827-329. 



342 


INTERNATIONAL LAW. 


CCXXXIX. Here it should be remarked that in those 
instances in which (g) rivers form the’boundary between two 
States, all nations appear to have acquiesced in the wisdom 
and justice of the rules laid down in the Boman Law u{K)n 
this subject. 

eeXL. The law of property as incident to Neighbour- 
hood or Contiguity was discussed under many and 

various heads (r) in that system of jurisprudence. But it 
was especially treated of in the following cases relating to 
fluvial Accessions. 

Proceeding ui)on the principle that the river itself was 
“ communis usus,” but that the bed of it was so much laud 
belonging to the proprietors of the banks, though the pro- 
perty was in abeyance while covered with water, and that 
the mid-channel was the line of demarcation between the 
neighbours, it decided — 

1. That if an island emerged in the stream, the property 
of it accrued to the owner of the nearest bank. 

2. If it emerged in the middle of the stream, the property 
w'aa divided between the arciflnii, as the opposite proprietors 
were called. 

3. If the channel of the river was left dry (o/ock* derelic- 
tus) it was also equally apportioned between the owners of 
the banks. 

4. If the river abandoned its new channel, a difference of 
opinion existed whether that channel also accrued in equal 
moieties to the owners of the banks, or whether it reverted 
to the dominion of the ancient proprietor {cujus anteafuit). 
The former opinion was given by Cuius, the latter by Pom- 
ponius, and both were incorjmrated in the Digest ; though 
the former only appeared iu the Institutes, with an intima- 
tion that it was doubtful Law {sed vix est ut id obtimat), as 


(V) Vattel, i. c. xxii. •. 266 : J)es Fleuves, des Rimhres, et des Lttes. 
(r) Dig. xliti. t. xii. I. is.?. De Fluminibus, 

Instit, 1. ii. t. i. ss. 20, 21. De Ferum dhis, ^c. 

Cod. tH. 41. De AUuviombtia. . 

Dig. xli t. i 1. 7, L 2t>, 1. 80, 1. 60, 1. 66. De Adquir. renttn domiti. 



BIGHT OF ACQUISITION. 


343 


indeed it appears to be, though much might depend upon 
the length of time daring which the new channel had been 
occupied. 

5. All alluvial deposits belonged Jure gentium, that is, by 
natural law, to the owner of the bank to which they adhered. 

6. If the violence of the stream («zs Jhiminis) had de- 
tached a portion of the soil from one bank and carried it 
over to the other side, the Law decided, that if it became 
firmly imbedded so as to be irremovable, it belonged to the 
owner of that side, otherwise it might be vindicated by its 
old proprietor. 

CCXLI. Modem times have furnished us with a very 
important practical commentary upon this ancient rule of 
Tublic Law. 

In the case of the Anna, captured by a British privateer 
and brought into the High Court of Admiralty for adjudi- 
cation, Lord Stowell made the following observations: — 
“ When the ship was brought into this country, a claim was 
“ given of a grave nature, alleging a violation of the terri- 
“ tory of the United States of America. This great lead- 
“ ing fact has very properly been made a matter of much 
“ discussion, and charts have been laid before the Court to 
“ show the place of capture, though with different represen- 
“ tations from the adverse parties. The capture was mode, 
it seems, at the mouth of the Kiver Mississippi, and, as it 
“ is contended in the claim, within the boundaries of the 
“ United States. AY e all know that the rule of Law on 
“ this subject is, terrcb dominium Jinitur, tibi jfinitur armorum 
“ vis ; and since the introduction of firearms, that distance 
“ has usually been recognized to be about three miles from 
shore. But it so happens in this case, that a question 
“ arises as to what is to bo deemed the shore, since there are 
a number of little mud-islands composed of earth and 
trees drifted down by the river, which fonn a kind of 
portico to the main land. It is contended that these ore 
^^not to be considered as any part of the tei’ritory of 
Ammdca, that they are a sort of * no muiUs land,' not of 



344 


INTEllNATJONAL LAW. 


** consistency enough to sufiport the purposes of life, unin- 
“ habited, and resorted to only for shooting and taking 
“ birds’ nests. It is argued that the line of territory is to 
“ be taken from the Balise, which is a fort raised on made 

land by the former Spanish possessors. I am of a diffc- 
“rent opinion ; I think that the protection of territory is to 
‘‘ be reckoned from tiicsc islands ; and that they arc the 
“ natural appendages of the coast on which they border, 
“ and from which, indeed, they are formed. Their elements 
“ are derived immediately from the territory, and on the 
“ principle of alluvium and increment, on which so much is 
“ to be found in the books of Law, qmd cis Jluniinis de tuo 
“ prcBdio detraserit, et vicim preedio attuUrit, pnlam tuum 
“ remanet (.«), even if it had been carried over to an adjoiti- 
“ ing territory. Consider what the consequence would be if 
“ lauds of this description were not considered as appcndiint 
** to the main land, and as comprised within the bounds of 
“ territory. If they do not belong to the United States of 
“ America, any other Power might occupy them ; they might 
“ be embanked and fortified. What a thorn woidd this be 
“ in the side of America ! It is j»hy.sically possible, at least, 
“ that they might be so occupied by European nations, and 
“ then the command of the river would be no longer in 
“ America, but in such settlements. The possibility of such 
“a consequence is enough to expose the fallacy of any 
** arguments that arc adduced to show' that these islands are 
“ not to be considered os part of the territory of America. 
“ Whether they are composed of earth or solid rock, will 
“ not vary the right of doiniuiun ; for the right of dominion 
“ does not depend u[)on the texture of the soil. I am of 
“ opinion that the right of territory is to be reckoned from 
“ those islands ”(/). 

It was not without reason that the ancients worship[>cd 
the God Terminus on account of the fidelity with which he 
preserved tlie Rights of Property between nations as well as 

($) Imt.. 1. ii. til. i. t<. 21. 

• U) The Aiiiia, ii C. Huh. Adm. Uep. p. 



RIGHT OF ACQUISITION. 


345 


individuals, and because they saw that if his jurisdiction 
were to cease, quarrels would be endless. 

Tu populos urbesque et regna ingentia finis (u). 

The River and the Mountain are not necessary land- 
marks (x ) ; there may be, and often are, artificial landmarks 
wholly irrespective of any natural boundaries. In these 
cases, the change in the course of the river has no effect 
upon the property. We know indeed, alas! by recent ex- 
perience, that the phrases “ natural boundaries ” and “ rcc- 
“ tification of frontiers ” have been used by powerful mili- 
tary States to cover unjust spoliation of the property of 
their weaker neighbour. But turning from these acts of 
violence and wrong, it is to be observed that in countries 
which have no other limit than a river, there is a distinction 
to be taken, according to Grotius, between a change made 
iu the course of a river by imperceptible degrees, and a 
change made all at once. In the former case, the river, 
being the same, continues to be the boundary ; in the latter, 
the river leaving its old channel all at once, it is no longer 
reckoned the same : the old bed of the river continues to 
be the boundary. 

CCXLII. The nature of Occupation is not confined to 
any one class or description ; it must be a bevjejimd use and 
occupation ( h travail cT appropriation (p) ) ; but it may be 

(«) “ Conveniiini, celebrantqiiu dapes vicinia siipplex, 

Et cantant laudca, Terraiuo saucte, tuas. 

Tu populos urbesqne fit regua iiigeutla finia ; 

Omnis erit sine t« litigiosuei oger. 

Nulla tiW amMtio ost : nnllo corniniperis auvo, 

Legitima servas creditn rura fide.” 

Ovid, Fasti, ii. 066. 

Grotius, ]. ii. c. iii. ss. 16, 17. 

7/qper, s. 06 : Grenzen der Staatsffebif te, 

"raitd des limites outre lo Bidal et la BiipabHque orientale do I’Uru- 
.<4ftniMnre des Deux Mandes, 1861-2. Appendix, p. 986. 

Kluher, 8. 133. 

Giinther, Kap, ii. 4. 

^oth&forthf h, ii. c. ix, rii; p. 491 (fid. Baltimore, 1832). 

t,v) Fuff, Orttdan, Doni, inttrn. p. 37. 



346 


INTERNATIONAL LAW. 


by a settlement for tbe purpose of prosecuting a particular 
trade, such as a fishery, or for working mines, or pastoral 
occupations, as well as agriculture, though Bynkcrshoek is 
con'ect in saying, ** cultura utique et cura ayri possessionem 
quam maxime indicat ” (2'). 

Yattel justly maintains that the pastoral occupation of 
the Arabs entitled them to the exclusive possession of the 
regions which they inhabit. " Si Ics Arabes pasteurs vou- 
“ laicnt cultivcr soigueuscment la terre, un moindrc espacc 
“ pourrait leer suffire. Cependant, aucune autre nation 
u’est en droit de les rcsserrer, & moins qu’elle ne manqufit 
" absolument de terre ; car enfin ils posshlent leur pays ; ils 
“ s’en servent d leur manicre ; ils eii tirent un usage con- 
“ venablc ^ leur genre de vie ; sur lequel ils ne resolvent la 
** loi de personne ” («). 

It has been truly observed that, “ agreeably to this rule, 
“ the North American Indians Avould have been entitled to 
have excluded the British fur-traders from their hunting 
.'“grounds; and not having done so, the latter must be 
“ considered as having been admitted to a joint occupation 
“ of the territory, and thus to have become invested with a 
“ similar right of excluding strangers from such portions 
“ of the country as their own industrial operations per- 
“ vade ”(i.) 

CCXLIII. A similar settlement was founded by the 
British an^^ussian Fur Companies in North America. 

The chief portion of the Oregon Territory is valuable 
solely for the fur-bearing animals which it produces. V arious 
establishments in different parts of this territory organized a 
system for securing the preservation of these animals, and 
exercised for these purposes a control over the native popu- 
lation. Tliis was rightly contended to be the only exercise 


(s) De Dominio Maris, vol. vL c. i. p. 3G0. 

(«) Vattd, 1. iL a. 07. 

(6) The Oregon Question, a pamphlet JtMuuo'd J. WMaee, 1840, 
p. 25. 



Bionx OF ACQUISITION. 


347 


of proprietary right of which these particular regions at that 
time were susceptible ; and to mark that a beneficial use was 
made of the whole territory by the occupants. 

CCXLIV. It should be mentioned that the practice of 
nations in both hemispheres is to acknowledge, in favour of 
any civilized nation making a settlement in an uncivilized 
country, a ri^ht of p re-emption of the contiguous territory 
from the native inhaSitants as against any other civUized 
nation (<?). It was a right claimed by Great Britain with 
respect to her Australasian settlements, especially New 
Zealand ; and by the United States of America with respect 
to the Indians in their back States (ft). 

CCXLV. The Bulls of Alexander VI. reserved from 
the grant to Spain all lands previously acquired by any 
Christian nation. It is much to be lamented, both for the 
influence of Christianity and the honour of Europe, that 
the regard, which has been shown of late years for the 
rights of natives in those countries, into which the over- 
flowings of European population have been poured, was not 
exhibited at an earlier period. 

It may indeed be justly said, tliat the Earth was intended 
by Grod to supply the wants of the general family of man- 
kind, and that the cultivation of the soil is an obligation 
imposed upon man; and it seems a fair conclusion from these 
premisses, that when the population of a country exceeds the 
means of support which that country can affoi^, they have 
a right, not only to occupy uninhabited districts (which, 
indeed, they would be entitled to do irrespectively of this 
emergency), but also to make settlements in countries capable 
of supporting large numbers by cultivation, but at present 
wandered over by nomad or hunting tribes. Vattel goes 
further, and gives a right to expel by force the inhabitants 
of a country, who, refusing to cultivate the soil, live entirely 
i>y rapine on their neighbours; and such people, like the 


(c) Wallace's PampMet, p. 28. 

(d) Tmss, Oregon, p. 106. 



348 


INTERNATIONAL LAW. 


modem Buccaneers in the Chinese Seas, may lawfully be 
treated as pirates. 

CCXLVI, To return, however, to the previous question. 
Vattel says: Ceux qui rcticiment encore cc genre de vie 
« oisif, usurpent plus de terrain qu’ils n’en auraient besoin 
avec un travail honnSte, et ils ne pcuvent se plaindre, si 
“ d’autres nations, j)lus laborieuses et trop resserrees, vien- 
“ nent en occuper une jiartie. Ainsi, tandis que la conqueto 
“ des empires polices du Pcrou et de Mexique a etc une 
"usurpation criante, I’ctablissment de plusieurs colonics 
" dans le continent de VAvierique septeutrumale pouvait, en 
“ se contenant dans de justes bornes, n’avoir rien que de 
" tres-lcgitime. Les peiiples de ces vastes contrees Ics 
" parcouraient plutdt qu’ils ne les habitaicut ” (e). 

And again : “ On nc s’ccarte done point des vues do la 
"nature, en resserrant les sauvages dans des bornes plus 
etroites. Cependant, on ne peut que louer la moderation 
“ des Puritains anglais, qui les j)renuers s’etablirent dans 
" la Nouvcile-Angleterre. Quoique munis d’une charte de 
“ leur souverain, ils acheterent des sauvages le terrain qu’ils 
"voulaient occuper. Ce louablc exemplc fut suivi par 
" Guillaume Penn et la colonic de Quackers, qu’il conduisit 
" dans la Pennsylvanie ” (/). 

Though it is to be hoped that this comparison in favour 
of Great Britain is, in great measure, founded in justice, it 
cannot be ^jH|ied that she is not without her share in the 
guilt of forcimy dis])osscssing and exterminating uiioifcuding 
inhabitants of countries with whom she had no just cause of 


(e) Vattel, t. i. 1. i. c. vii. 8. 81. 

(/) lb. c. xviii. 8. 209. 

“ He that brings wealth home is seldom interrogated by what means it 
was obtained. This, however, is one of those modes of corruption with 
which mankind ought always to struggle, and which they may in time 
hope to overcome. There is reason to expect that as the world is more 
enlightened, policy and morality will at last be reconciled, and that 
nations will learn not to do what they would not suffer.” — llMU^htt on 
ike Transactions rrlatim/ to Ike I'aUslniid Islands, 1771, by Dr, Johnson, 
Works, Tol, xii. pp. 12;), 124. 



RIGHT OF ACQUISITION, 


349 


war. “ The patent granted by King Henry VIT. of England 
« to John Cabot and his sons authorized them * to seek out 
« and discover all islands, regions, and provinces whatsoever 
that may belong to heathens and inhdels,’ and ‘ to subdue, 
“occupy, and possess these territories, as his vassals and 
“ lieutenants.’ In the same manner the grant from Queen 
“Elizabeth to Sir Hum[»hrey Gilbert empowers him *to 
“ discover such remote heathen and barbarous lands, 
“countries, and territories, not actually possessed of any 
“ Christian pi’ince or people, and to hold, occupy, and 
“ enjoy the same, with all their commodities, jurisdictions, 

“ and royalties ’ ” (g). Most truly does Mr. Wheaton say, 

“ There was one thing in which they ” (i.e. the European 
nations) “all agreed, that of almost entirely disregarding 
“ the right of the native inhabitants of these regions” (/i)» 

CCXLVII. Nor can a better excuse for such conduct be 
alleged than the detestable doctrine, which it is melancholy 
to find maintained by some modem writers, viz. that Inter- 
national Law is confined in its application to European 
territories. A denial of this doctrine formed part of ,an 
earlier chapter of this work («), and need not be more par- 
ticularly referred to in this place. 

It should be remembered that Penn, though formally 
commissioned by his sovereign, acquired his territory by 
treaty and convention with the aboriginal inhabitants. 

CCXLVIII. It may therefore be conside^^ a maxim 
of International Law, that Discovery alone^^rough accom- 
panied by the erection of some symbol of sovereignty, if 
unaccompanied by acts of a de facto possession, docs not 
constitute a national acquisition. 

A different opinion appears, indeed, to have been enter- 
tained by the officers of Great Britain in 1774, at tl»e period 
of her temporary abandonment of the Falkland Islands. 


(g) WheatoniCt Kenmti (English ed.), pp. 209, 210, 
(t) Ft. i. ch. liL 



350 


INTERNATIONAL LAW. 


But the doctrine in the text may now be said to be very 
generally established (J). 

CCXLIX The practice of nations supports the doctrine 
of benqficial use and occupation (k). In a dispute which arose 
between Great Britain and Spain relative to the subject of 
Nootka Sound {!), Spain claimed a large portion of the north- 
western coast of America upon the ground of priority of 
discovery and of long possession, confirmed by the 8th 
Article (tn) of the Treaty of Utrecht (1713). The British 
Government resisted their claim upon the ground that the 
Earth was the heritage of all mankind, and that it was com- 
petent to each State, through the means of occupation and 
cultivation, to appropriate a portion of it The dispute was 
ended by a convention between the two Powers, in which it 
was agreed, that it was lawful for the respective subjects of 
each to navigate freely the Pacific aud the Southern Seas, 
to land upon the coasts of these seas, to traffic with the 
natives, and to form settlements; subject to certain con- 
ditions specified in the convention. 

CCL. The claims of the United States of North America 


(j) Eitg. Ortokni, Dom. intern, p. 4!), n, 2 ; Moeef^s Fersue/i, Bucli f>, 
p. 541. 

Wenck, t. iii. p. 816. 

Jafimon’s Works, vol. xu. : Thoughts on the FalUmid Islands. 

Martesis, Bee, t ii. p. 1. 

Inscription- ^ le lieutenant (daytan, cmmnandmit le fort Egniont,jU 
graver sur u/n4'jiique de plotnb attackee au fort Egtnont pour conseriier 
les droits de la couronrie dAngleterre sur les Isles de FalcMtmd lorsque les 
Anglaa quUtirent ledit fort le 2‘J mni 1774 : 

Qu’il aoit notoiie & toutes lea nations que les Isles de Falckland, ainn 
que ce Fort, les Magasins, Quaia, Bajes et Oriquos qni en 

ddpendont, appartienneut de droit unj^^p|mt il sa Trds-SacT^e Majestd 
George III., Koi do la Grande-BretagUe, do France, ot d’lrlande, I)d- 
fenseur de la Foi, etc. En foi do qnoi cette Plaqne a dt4 luc4o, et les 
Pavilions de S. M. Britannique ddploy^s et arbors, comme une marque 
de possession, par Samuel Guillaume Clayton, Officier commandant aux 
Isles de Falckland, le 22 mai 1774.” 

.. (A) Evg. Ortolan, Dom, int. p. 48. 

(l) Wheaton, Elem. t. i. p. 182. 

(»«) Schmauss, ii. 1422. The words of the Articlo are very vague. 




RIGHT OF ACQUISITION. 


351 


upon the O^ gOT^er i yijtory w ere, as has been shown, chiefly 
founded u’pw pnority oi discovery, both by their own sub- 
jects, and by the Spaniards, whose pretensions they had by 
the Treaty of 1819 inherited. The British Government 
denied both the fact of prior discovery, and the enormous 
inference sought to be drawn from it; and most clearly 
asserted at the same time the right of other nations to 
occupy vacant portions of the earth wheresoever they might 
bo. The temporary arrangements of 1818 and 1827 were 
merged in the definitive Treaty of Washington in 1846 (n). 

(n) “ Artuie I , — From the point on the forty*ninth parallel of north 
latitude, where the boundary laid down in existing; Treaties and Oon- ^ 
veutions between Great Britain and the United States terminates, the 
line of boundary between the territories of her Britannic Majesty and 
those of the United States shall be continued westward along the said 
fortj'-ninth parallel of north latitude to tlie middle of the channel which 
separates the continent from Vancouver’s Island, and thence soutlierly, 
through the middle of the said channel, and of Fuca’s Straits to the 
Peicific Ocean ; provided, however, that the navigation of the whole of i 
the said channel and stnuts, south of the forty-umth parallel of thej 
north latitude, remtdn free and open to both parties. 

“Articie II . — From the point nt which tho forty-ninth parallel of north 
latitude shall be found to intersect the great northern branch of the 
Golumlna Eiver, the navigation of tho said branch shall bo free and open I 
to the Hudson’s Bay Company, and to all British subjects trading with j 
the same, to the point where the said branch meets the main stream of' 
the Oulumbia, and thence down the said main stream to the ocean, with, 
free access into and through the said river or rivers ; it being understood 
that all tho usual portorage along tho line just described shall be in like 
manner free and open. 

In navigating the said river or rivers, British subjects, with their ■ 
goods and produce, shall bo treated on the same footing as citizens of the 1 
United States ; it being, however, always understood that nothing in this! 
aiticle shall be construed as preventing or intending to prevent the 
Government of the United Stsi|i||||m making any regulations respecting 
the navigation of tho said rivdl^RP^rs not inconsistent with the present 
Treaty. ’ 

“ Article HI , — ^In the future appropriation of tho territory south of the 
foi^-ninth parallol of north latitude, as provided in the lirst article of 
this Ti^ly, the possessory rights of the Hudson's Bay Company, and of 
ah British subjects who moy bo already in the occupation of land or 
other property lawfully acquired witlrin the said territory, shall be 
respected. * 

“ Artide IV , — ^The farms, lands, and other property of every description 



352 INTEKNATIONAL LAW. 

beloiifring to the Puget’s Sound Agricultural Company, on the north side 
of the Columbia River, shall bo confined to the said Company. In (^ase, 
however, the situation of those farms and lauds should be considered by 
the United States to be of public and political importance, and the United 
States Government should signify a desire to obtain possession of the 
whole or of any part thereof, the property so required shall he transferred 
to the said Government at a proper valuation, to be agreed upon between 
the parties.”— /Inn. Reg. 1840, pp. 453, 45-4. 

Under this Treaty a dispute arost) between the two States as to the 
ownership of the island of San Juan. The matter was one of those dealt 
with by the Treaty of Washington of 1871, and was, by one of its pro- 
visions, submitted to the arbitration of the German Emperor. His award 
dated October 21 , 1872, gave it to the United States, — Vide infra, vol. iii. 
chap. i. s. 3. 



PRESCRIPTION. 


353 


CHAPTER XIIL 

PIIESOKIPTION. 

CCLI. The second mode of Original Acquisition is effected 
by the operation of time, by what English and French 
jurists term Prescription («). In order to arrive at any solu- 
tion of this difficult question which may be at all satisfactory, 
it is necessary to make some observations upon tlie place 
which Prescription occupies in the systems both of Piivate 
and Public Law, svs introductory to the consideration of the 
place occupied by the same doctrine in the system of Inter- 
national Jurisprudence. 

First, as to Private Law . In all systems of yo7««/e juris- 
prudence, the lapse of time has a considerable bearing upon 
the question of property (5). There is, according to all such 
systems, a period when a de facto becomes a de jure ownership, 
when possession becomes property. The nature of man, the 
reason of the thing, the very existence of society, demand that 
such should be the case. The Roman Law does but give 
expression to this paramount uccessity in the maxim, " Vetns- 

(«) Orotius, 1. ii. e. iv. 

I'lf^endorfj Jus. Nat-, et Gent. 1. iv. c. xii. 

Wclffy Jus. p. iii. c. vii. 

Vattdj 1. i, c. xvi. s, 191); 1. ii, c. xi. sa. 140, 151. 

(6) Orotim indeed says that icsiicapio ia tile creature of the Civil Law, 
because nothing is done fry time, though every thing is done ut time ; hut 
this seems an unworthy subtlety, and is inconsistent with otlier passages 
in his work. 

Tempg^ qui ren ferine en soi I’idee do la dur^i, de Ja r^p*5tition ot 
do la succession des ph^nomenes, iin des agents do modification, do 
destruction ot de g^niSratiou pour les ehoa»a physiques, restera-t-il sans 
influence sur la modification, sur la destruction et aur la gdndration des 
droits P ” — Dainaim intemaL^ par E, Ortolan ^ p. 98. 

VOL. I. A A 



354 


INTERNATIONAL LAW. 


** tan qiMB semper pro lege tenetur ” (c). Tlie doctrine of Usv~ 
eapio exhibits the first trace of this mode of acquisition in 
Boman Jurisprudence (J). According to this doctrine, the 
possessor, justo tifulo et hona fide^ during two years of land, 
and during one year of movables, which had not previously 
belonged to him, acquired a property in it or them. This iu' 
stitution was originally confined to the pmdia Italica and to 
the Boman citizen ; but the Praetor extended it to fundi 
provinciales, and to the peregrinm, under the appellation of 
preescriptio longi temporis. Justinian, who destroyed the dis- 
tinction between civil and natural property, took also away 
the distinction between fundi Italici and provinciales, blended 
together the usucapio and the preescriptio, and conferred 
not only a right of possession but of property on the person 
who had possessed movables for three, and immovables for 
ten years inter preesentes, or twenty inter absentes, provided 
that the subject-matter had been capable of usucapio or 
preescriptio, and there had been Justus titulus and bona fdes{c). 
He also added another species of Prescriptive Acquisition, the 
Preescriptio xxx vel xl annorum. This longissimi temporis 


(r) IHg. xxxix. t. iii, 2 : sec also xliii. t, vii. .1. 

Dig. xliii. t. xx. 3, 4 ; “ Ductus aquro cujus origo mmorinm exemit, 
jure constduf i loco habetur. 

(f7) Which theOcTuiauB eall.S'rs^sKN^. In the XII. Tables it boro the 
name of mmuctorUas, i.e. nsus et anctoritns. 

Puehta, Inslit. ii. s. 240. 

Saeigny, R. R, iv. s. 105. 

Savigny, RecM des Besitzes, Absclinitt i. .s. 2. 

In^it. ii. C, de usucapionibiLS et longi temporis prscscriptionibus. 

Dig. xli. t. iii. de usurpationibus et de nsucapionibus.— Code vii. t. 31 , de 
nsucapione transformanda et de sublata diiTerentia remm mancipi et nee 
mancipi. — 3.3, de pnescriptione longi temporis decctn vel vi^li annorum. 
— 84, in quibus causis cessat long^ temporis preescriptio. — J15, quibus non 
objicitur longi temporis preescriptio.— .’58, ne rei doniinicm vol templorum 
wndicatio temporis prsesciiptione submoveatur. — 80, de pncscriprione 
xxx vel xl annorum. 

(f) “Parli cessent les difliSrences ontre la propri^td civile et la pio- 
pridtd naturelle— entre Vusueapion, cette patronne de I’ltalic, et la pres- 
erijition, cette patronne du genre humain.” — Troplong, p. 130. 

Cod. C., De Usueapione transformanda. 



ACQUISITION BY PRESCRIPTION. 


355 


posmsio, as it was afterwards called, did not confer property 
on the possessor or take it away from the proprietor, but it 
furnished the possessor with a defence against all claimants, 
and that though there had been no Justus titulus. Besides 
these classes of Prescription measured by a definite time, 
was the indefinite class. Immemorial Prescription {immemo- 
riale tempuSf possessio vel prascriptio iinmemorialis), which 
was called adminieulum juris qtto guts tuetur possessionem, 
qua memoriam hominnm excedit {f). 

Tills kind of Prescription was available when the origin of 
the possession was incapable of proof— when nobody could 
recollect that it had belonged to another person. Such a 
Prescription might have for its object things incapable of 
being ottierwise acquired, though not such things as were by 
nature res communes. It is mentioned, however, with re- 
ference to only three heads of what may be called jmblic law 
— namely, 1. With reference to public ways {via pnhlica, 
privata, vicinales). 2. To a right of protection from the rain- 
water {aqua pluvia arcenda). 3. The right relating to water- 
courses (ductus aqua (y) ). 

CCLII. The passages in the Roman Law (h) show that the 
doctrine of Immemorial Prescription was applicable only to 
those few cases in which either a right of a public character, 
or an exemption from the obligation of such a right, was to 
be acquired. It is not surprising, therefore, that the doctrine 
should have occupied a very subordinate place in Roman 
jurisprudence, or, the reason of the thing being considered, 
that it should during the Middle Ages have risen into an 
institute of continual use and of the highest importance. 

(/) ** The possession necessary to constitute a title hy prescription 
must he uninterrupted and peaceable, both according to the Tjaw of 
Ilngland, the Civil Law, and those of France, Normandy, and Jersey." — 
Betuft V. JRfjpon, 1 Kmpp Privy Council Jttports, p. 60. 

(?) See note (c). 

“Scavola lespondit solere eos, qui juri dicundo prsesunt, lueri ductus 
juthus auetontatem vetustatis daret, tametsi jus non prabnretur ," — 
mix. t. iit 28. 

(A) &iviffny, R. R. iv. s. 198. 

‘ a A 2 



356 


INTERNATIONAL LAW. 


In the first two of the three instances specified in tlie 
Digest, Immemorial Prescription appears, on examination, to 
be unconnected with the fact of actual possession, but in the 
last to be necessarily bound up with it ; and this condition i» 
treated as indispensable in later jurisprudence. 

CCLIII. The Canon Law (/) contains two remarkable 
instances of the application of Immemorial Prescription. In 
the year 1209 a Papal Legate forbade the Count of Toulouse 
the exercise of ccrbiin regal privileges with respect to the 
imposition of taxes. The Pope, at the. request of the Count, 
declared that the prohibition extended only to the taxes 
arbitrarily imposed, and not to those which were equitable; 
\mder which class were to be reckoned those which had 
been permitted by the Emperor, the King, or the Lateran 
Council, and also those “vcl ex antique consuctudiue, a 
“ tempore cttjns non exstat memoria, introducta ” (j ). The 
second passage relates to the case of a bishop, who claimed 
a Prescriptive Right to the tithes jind churches within the 
see of another bishop. It has been seen that, according 


(0 2?. iv. s. 108. 

Bichhom, Kirch&irecht, h. vii. c. vii. iv. : “ Verjahruiig gegen die 
Kirche.” 

Suarez, de Let/, 1. viii. c. x.xxv. «. 21. More than 100 years, however, 
wore held necessary to establish a pre-ocriptioh against the Church of 
Rome : 1. ii. t. xiii. c. ii., 1. vi. 

The distinction lietwwm “ ITsucapio ” and “ Prrescriptio ” is thus slated 
by one of the most eoimcnt of modern canonists, Schmalzgriiher (/w 
Cimonmun, vol. ii. p. .32!). He says ; 

“Distinctio propria (Jt primaria’’ is — 

1. tJsucapio is cause. 

2. Prffiscriptio is ^ect. 

'‘Distinctio ordinaria” i.s — 

1. “ Usucapio ” concerns “ res corporales ” and requires actual 

po.ssession, “ veram possessionem,” 

2. “ Prsescriptio ” does not, but is content with quasi possessio. 

The use of the phrase “ prmscriptum est obligationi ” implies ojquy- 

silimi to a former propiietor. 

“ Pvajscripta est servitivs, prsescripsi rem ” implies “ no more than 
legitimate acquisition.” 

(j ) X. lib. V. t. 40, c. 20, de V. S. 



ACQUISITION BY PRK8CR1PTION. 


357 


to the Konian Law, a possession for three, ten, or twenty 
years with, or for thirty without, a title, furnished the 
possessor with a defence on the ground of prcuscrijttio or 
usucapio against any private claimant. Churches were, 
generally 8})eaking, privileged against any Prescription less 
than forty years ; but that Prescription against the Cliurch 
did not require a title provided there were a hona Jules, 
In tlie case of the bishop, however, this Prescription of forty 
years, it was said, would not avail, because it was eoiitrary to 
the Common Law ; “ ubi tamen cst ei jvs connnune couti’ariuni 

velhabetur^rcesum/zt/u contra ipsum, bona Jides non sufiicit: 
“ sed est nccessarius titnlus, qui possessoii causam tribuat 
“ prsEScribendi : nisi tanti teinjuiris allcgetur prasscriptio, cujns 
“ contrarii memoria non existat^' (A). 

CCLIV. The tendency and spirit of modern legislation 
and jurisprudence has been to substitute, in i Law, 
a short definite period of time in lieu of Immemorial Pro- 
scription. 

In England, the “ time of memory ” was, at a very early 
period of her history, ascertained by the law to commence 
from the reign of a particular monarch ; for though a custom 
was said to be good Avhen it had been used “ time out of 
“ mind,” or " for a time whereof the memory of man runneth 
“ not to the contrary,” the phrase referred to a fixed ejwch, 
namely, that the custom was in use before the beginning of 
the reign of Richard I. Recent legislation has introduced 
a Prescription limited by a specific number of yeare, which 
it hits substituted for the doctrine of immemorial usage (^.) 


(A) The whole peerage in the Mxth hook of the JJecretah is ns follows : 
" Kpacopum, qui ecclesias et deciuins, quns ah eo repetis, proponit, licet 
m tua ^t couElitutss dioecesi, se legitime prteseripsisse, adlegare oportet, 
cmwjM* commune centra ipsum facial, liujusmodi prajscriptioiiis tituluui 
et prohare; nam licet ei qui rem prsescribit ecclesiosticaiu, si sihi non est 
contrwum jua commune, vel contra cam pnesumtio non haheatur, 
^ffieiat hmafides’, uhi tamen,” &c. — 1 j. ii, t. 13, cap. 1. De Vraneript. 
w Vito. 

(0 Blackstone’s Commentaries on the Lam of EnglawJ, b. 2, c. iii. 



358 


INTEUNATIONAL LAW. 


lu France (m) Immemorial Prescription has been abolished, 
and a fixed period substituted; and in Austria; as well as 
in Prussia also, though in this country very long periods of 
time arc required in certain cases (n). 

CCLV. Secondly, as to Public Law. The doctrine of 
Immemorial Prescription is, from the very necessity of the 
case, indispensable (o) in the system of Public Law. 
Accordingly, we find it mentioned more than once in the 
Constitutions of the ancient German Empire, and as a mode 
of acquiring Public Rights (p). 

Savigny illustrates the use of Immemorial Prescription in 
matters of Public Law by a reference to the condition of 
England from the Revolution of 1688 to the death of the last 
of the male Stuarts, the Cardinal of York, in 1806. During 

Tho rult; was adopted when, by tbe Statute of Westminster (3 
Edward I. c. 89), the reign of Kicbard I. was made the time of limi- 
tation in a writ of right. 

Statute of 2 & 3 Will. IV. c. 71 : An Act for shortening the time 
of prescription in certain cases.” It was the intention of this Act to 
establish practically and generally a 30-years’, and certainly and univer- 
sally a CO-years’, prescription. — Stephev!^ CummmL b. ii. t. i. c. xxii. 

Sec also 3 & 4 Will. IV. c. 27, and 37 & 38 Viet. c. 67. 

(m) Code civih 

“ 090. Les servitudes continiices et appart?ntea s'jicquiereut par titro, on 
par la possession de trenie (c. 688, 689, 706, s. 2177, 2232, 2281.) 

G91. Les servitudes contiziu^es non apparentes, et les servitudes dis- 
contiim^es apparentes ou non apparentes, ne peiivent s’<$tablir que par 
litres. 

La possession meme hnui^inorittlo ne siiiiit pas pour les ^tablir ; sans 
eependant qu’on puissc attaquer aajourd’hui les servitudes de cette uaturo 
d^ja acquLses par la possession, dans les pays ou elles peuveni.s^aequ^rir 
de cette mauiei'e” (c. 688, 689.) 

(w) Si.v, thirty, forty years in Austria. 

Thirty, forty, forty-four, fifty years in Prussia, 
lilutne^ Deutsches Ihdvatrechtj s. 179, 

Samynyj It. JB. iv. s. 198. 

(o) oiTentlichen Keclit ist die unvoi'denkliche Zeit durchaiis 
nicht zu entbehren, und es ist ganz gleicbgUItig wie wir Juristen daruber 
urtheilen, sic wird sich unfehlbar Bahn brechen, so oft eine Veraulassung 
dazu erscheint.” — Savigny, ih. 

(p) Savigny, ih., citing Aurea BuUa, c, viii. s. 1 : A tempore cujus 
eontrarii hodie non existit memoria.” See too a lieichmhtchiei of 1648 
and of 1576. 



ACQUISITION BY PRESCKIPTION. 


359 


a considerable portion of this interval it might have been, 
and it actually was, a question of grave conscientious doubt 
to many whetlier the change of dynasty was the effect of 
temperate equity and wise policy, or of mere violence and 
injustice ; and if, during this interval, a successful invasion 
had reseated the Stuarts upon the British throne, their 
right, as having continued unbroken, tliough suspended by 
violence, would have obtained a very general recognition. 
AVho can point out, in tliis or in a similar instance, the exact 
year when the doubt was merged into cci*tainty ? and yet it 
is not difficult to describe the general character of such a 
transition. When the generation had passed away which 
had been alive during the former state of things ; when the 
convictions, feelings, and interests of the succeeding genera- 
tion had become identified with the new oi'der of things, 
then might not improperly be said to hegin the Prescription 
of Public Law. This is, in principle, very much the same 
as the Prescription of the Private Law ; which, indeed, may 
be said to have been modelled upon the usage of Public Law, 
and which usage grew out of the reason of the thing. 

CCLVI. Having discussed the position of prescription 
in the systems of Private and Public Law {q), we now ap- 
proach the consideration of a matter, holden by the master 
mind of Grotius to be one of no mean difficulty, namely. In- 
ternational Prescription. Docs there arise between nations, 
as between individuals, and as between the State and indi- 
viduals, a presumption from long jiossession of a territory or 
of a right which must be considered as a legitimate source 
of International Acquisition ? 

In seeking an answer to this important question, it is 
necessary to keep clear of all subtle disquisitions with which 
this subject has been perplexed ; whether, for instance, it be 
the creature of Natural or Civil Law, or whether it must 

(9) 'AXXi oiV iKftvo iffAas on ras miaeis kqi rhs liiaf ml 

wj? leoiv&r, imyivffrai 7 ro\vs KVftias Ka\ narpt^as Sirams eivai 

yopi(ov(n.^lBocr., OrtU. Archidam, 



360 


INTERNATIONAL LAW. 


always be founded upon a presumption of voluntary aban- 
donment or dej'eliction by the former owner. Through these 
metaphysical labyrinths we cannot find a clue for questions 
of InteiTiational Jurisprudence. The effect of i\\Q lapse of 
time upon the property and right of one nation relatively to 
another is the real subject for our consideration. And if 
this be borne steadily in mind, it W'ill be found, on the one 
hand, in the highest degree irrational to deny that Prescrij)- 
tion is a legitimate means of International Acquisition ; and 
it will, on the other hand, be found both inexpedient and 
impracticable to attempt to define the exact period (r) within 
which it can be said to have become established — or, in oilier 
words, to settle the precise limitation of time which gives 
validity to the title of national possesvsions. 

And therefore to the question, what duration or lapse of 
time is rt'<iuircd by the canons of International Jurispru- 
dence in order to constitute a lawful possession? it is enough 
to reply — First, that the title of nations in the actual enjoy- 
ment and peaceable possession of theii’ territory, liowsoerer 
orit/inalfp ahtained^ cannot be at am/ time questione*! and 
disputed. Secondly, that a forcible and unjust seizure of a 
country which the inhabitants, overpowered for the moment 
by the sui>eriority of physicjil force, ineflectually resist, is a 
possession which, lacking an originally just title, requires the 
aid of time to cure its original defect ; and If the nation so 
subjugated succeed before that cure has been effected, in 
shaking off the yoke, it is legally and morally entitled to 
resume its former position in the community of States. 

CCL\II. This is called, in technical language, the doc- 
trine of PostHmvnum, which will be discussed hereafter (s). 


(r) Vttttelf 1. ii. c. xii. s. 151, expresses a wish thut such a {leiioJ could 
lie asivrtained by the universal consent of nations: hut the inexpediency 
is as great as the impossibility of such a scheme. 

• Grotim refers to the aiiah^’ of castom : “ Tempus very, quo ilia con- 
Buetudo efteetum juris occipit, non est defiuitiiin sed arhitmriuin, quantum 
satis est nt concurmi ad signiSctuulum consensum ”-—1. ii. c. iv. 5, s. '2. 

(«) Vide post, chap. xvi. 



ACQUISITION BY PRESCBirTION. ” 361 

It must, however, be remarked here, that the rights of Post- 
limiuium can only attach to States which have been, previous 
to their subjugation. Independent Kingdoms. It was there- 
fore with justice that the Allied Powers, in the adjustment 
of the relations between Belgium and Holland after the 
revolution of 1830, resisted certain Bclgic claims founded 
tipon an alleged Postliminium^ on the ground that Belgium 
had never been an Independent State, had never been “ sui 
juris , and could therefore have no title to the application 
of this doctrine. 

CCLVIII. It is true that some later writers on the Law 
of Nations have denied that the doctrine of Prescription 
has any place in the system of International Law (<). But 
their opinion is overwhelmed by authority, at variance with 
practice and usage, and inconsistent with the reason of the 
thing. Grotius, Ileineccius, Wolff, Mably, Vattel,Ruther- 
forth, Wheaton, and Burke (»/), constitute a greatly prepon- 
derating array of authorities, both as to number and weight, 
upon the opposite side. 

The practice of nations, it is not denied, proceeds upon 


{1) KUiber, s. 0, 120. 

Mttrtem, 1. ii. c. iv. s. 71. 

(«) Grotius, 1. ii. c. iv. : “ l)u derelictiMoe prsesumpta et earn secuta 
(x;cui)atiouc ; etqiiid nh iiancapioue et pruiscriptinne difi'eiat}” and tbe 
commentary of Ileiiiecdus tlicreupon in his PrtelecL Avud. hi Grot. 

iturku, vhle post. 

VafM, 1. ii. c. xi. 

IVheaton, Elhn. c. iv. a. 4, t. i. p. 169. 

Spikershoek may, I think, fairly be added to tbe list. Such it seems to 
me is the inference from the following, amoiijf other passaj^^s, in which 
he combats the possibility of the Dominion of the Sea being acquired 
by Prescription : “ Sed lingo (Irotius (p. 389) et Vasquius Grotio re- 
prmsentatus cap. vii. Maris l^ri, docoeruut, longa possessione non 
qumn maiium dominia. Et qui jiotest modus ncquirendi, qui duntaxat 
est a Jure CivUi, diversos principes ohligareP Dtitur eliam ea raUoiie 
Grotius, sed bene est, quod parcius, quia id ipsum rursus coucessit (rfe 
Jure B. et P, lib. ii. c. 4) et ita mine vvlgo placet, si adsint, quas ille 
persoquitur, taciteo concessiones, iudicia, priesumptiones aliaque ad> 
muucnla, per qute ipsa magis, quam per longi temporis capiouem extra- 
neos excludi jus fasque esset. At vero, per me licet, excute quicqnid est 



3$2 


INTEttNATIOWAL LAW. 


the presumption of Prescription, whenever there is scope for 
the admission of that doctrine. The same reason of the 
thing which introduced this principle into the civil juris- 
prudence of every country, in order to quiet possession, give 
security to property, stop litigation (or), and prevent a state 
of continued bad feeling and hostility between individuals, 
is equally powerful to introduce it, for the same purposes, 
into the jurisprudence which regulates the intercourse of one 
society with another, more especially when it is remembered 
that war represents between States litigation between In- 
dividuals (y). It is very strange that the fact, that most 
nations possess in their own municipal codes a positive rule 
of law upon the subject, has been used as an argument 
that the general doctrine has no foundation in International 
Law. 

It is admitted, indeed, that Immemorial Prescription con- 
stitutes a good title to national possession; but this is a per- 
fectly nugatory admission, if, as it is sometimes explained, 
it means only that a State which has acquired originally by 
a bad title, may keep possession of its acquisition as against 
a State which has no better title. If it had been merely 
alleged that the exact number of years prescribed by the 


earum prsesumptionum, et si quid conjecturU dsndum, reperies geutiam 
animos adversus prseacriptioueiu maris oiunimudo luilitnre et nihil reliqui 
facere, quoiuinua voluntalem suatu enixe declarent; teatantur id acta 
populonim pnblica, teatatur quotidie suo quisque exompio, dum, quod 
alius more iu domiuium suum tianscribit, tJius eo rel invito ingrediatur 
et alterius possessionem, si quam prffitendat,continua navigatione turbet.” 

And again be says: ‘‘Cteterum ne plura addam, Grotius et Vas- 
quius in causa sunt, namque hi maris nsucapionem subinoveruut sis 
rationOnus qm» metu facere non dubitem, si demos, quae ipai ainnt de 
nature mans praescriptioni adversa, utpote re commuui ex legibns 
Naturss et Gentium, et qnm uec in bonis esse posset, nec possideri, nec 
quasi possideri, nec alienari, ot csstera, de quibus non nihil dicam 
uift."— Jte Donmio Marit Pratcriptio, c. vL 
{x) '‘Vetustas qu» semper pro lege habetur minuendorom scilicet 
Utinm causa xxxix. t iii. 2. 

(y) ** Bono publico usuespo introducta est, ne scilicet qu^ndem 
rernm diu et fere semper iacerta domiiua eseent,”— Xby. zli. t iu< 



PKliSCllIPTION. 


363 


Boman Law, or by the municipal institute of any particular 
nation, as necessary to constitute ordinary prescriptions («), 
is not binding in the affairs of nations, the position would be 
true. It is, perhaps, the difficulty attending the application 
to nations of tliis technical pwt of the doctrine, which has 
induced certain writers to deny it altogether; but incor- 
rectly, for, whatever the necessary lapse of time may be, 
there unquestionably is a lapse of time after which one 
State is entitled to exclude every other from the property 
of which it is in actual possession. In other words, there 
is an International Prescription, whether it be called Imme- 
morial Possession, or by any other name. The peace of 
the world, the highest and best interests of humanity, the 
fulfilment of the ends for which States exist, require that 
this doctrine be firmly incori)oratcd in the Code of Inter- 
national Law. It is with great force of reason and language 
that Grotius, repelling the contrary proposition, observes : 
“ Atque id si admittiinus, sequi videtiir maximum incommo- 


(s) Puffendorf, under the title l)e Usuenpiom,” in tbe twelfth chapter 
of his fourth Book, discusses the applicntiou of the doctrine of Prescriptiou 
to nations. His remarks are perspicuous and wiso. “Inter hasce” (he 
ears in his ninth section) “ discrepautes seiitentias id quidem liquidum 
videtur : quemadmodiuu doiuinia rerum pacis causii sunt introducta, ita 
et illud ox eodem fonte promanarc, quod possessores house fidei ali- 
quando unt in into collocandi, novo ipsis in perpetuum super sua pos- 
sessione controversia queat moveri. Quantum autem sit illud spatium, 
intra quod possessio hoiue fidoi in vim dosninii evalcscat, precise neque 
uaturali ratione, neque universali gentium conseusu determiuatum de- 
prehenditur ; sed arhitmtu boni viri non citra aliquam latitudinem deti- 
uiendum erit.” He then refers witli some humour to the vague tests of 
prencviptivt. poetry proposed in llorace, lib. 2, op. 1, and proceeds: — 
“ In designaudo autem hoc tempore ratio habehilur et antiqui domiui, 
et recontis possessoris. Illius quidem, ut ne mature nimis a perseqneuda 
et investiganda sua re excludatur.” And he closes the section with 
spying:— “ Adeoque cum dominia rerum introducerentur, id quoque 
pscis causa placuisse, ut qni aliquid neque vt, neque clam, neque precario, 
suo Domine posnderat, tantisper dominus prtesumetetur, quoad ab altero 
contngima pnoboratur ; qui autem per longissimum temporis spatium, 
^r quod nemo medio<snter diliguns rem suam negligere creditiur, quid 
fide possederit, serum petitorem plane posset repellere, quia non 
citius nax suam wndicatum iverjit.”— De Jure yatura et Oentmn, 



364 INTERNATIONAL LAW. 

dura, ut coatrovergiae de regnis regnorumque finibus nullo 
“ unquam tempore extinguantur: quod non tantiim ad pertur- 
bandog multorura animos et bella gcrenda peitinet, sed et 
“ fiomnuni gentium sensui rcpuguat ” (a). 

CCLIX. It is impossible to speak with greater accuracy 
upon this very delicate subject ; as the application of llie 
general rule must of necessity be greatly modified by the 
special circumstances of each particular case. Yattel’s re- 
marks upon this subject are clear and sensible : — 

“ La Prescription ne pouvant 6tre fondee que sur uiie 
presomption absolue, ou sur une pvesomption legitime, 
“ elle n’a point lieu si le proprietaire n’a pas veritablemcnt 
“ neglige son droit. Cette condition importe trois choscs : 
“1® que le proprietaire n’ait point a allcguer une ignorance 
“ invincible, soit de sa part, soit de cello de ses auteurs ; 2“ 
“ qu’il ne puisse justifier son silence par dcs raisons legi- 
times et solides ; 3® qu’on ait negligd son droit, on garde 
“ le silence pendant un nombre considerable d’anndes ; car 
“ une negligence de peu d’annees, incapable de produire la 
‘‘‘ confusion et de mettre dans I’incertitudc les droits respec- 
“ tifs des parties, ne suffit pas pour fonder ou autoriser une 
“ presomption d’abandonuement. II est impossible de dc- 
“ terminer en droit naturcl le nombre d’annees requis pour 
“fonder la Prescription. Cela depend de la nature de 
“ la chose dont la propriety est disputce, et des circou- 
“ stances ” (b). 

But that Prescription is the main pillar upon which the 
security of national property and peace depends, is as iucou- 


(ii) L. ii. c. iv. s. 1. 
too, Wolff. 

And 80 Vsttel : Le droit de succession u’eat juis toiijours pri- 
mitivement ^taMi par la nation ; il peut avoir ^t<5 introduit par la con- 
cession d’un autre souvenun, par I’lisurpation meme. Mais lor^u’U est 
appuyd d’une longue poasesfflon, le people est censi y consentjr, et ce 
cousentement tacite le Idgitime, quoique sa source soit ncieuse. II pofe 
tthrt turle mime fondemeut $eiU Ugkime et inibrimlablef d fw^ 

teujmn revtnirJ ' — Vattel, t. i. 1. i. c. v. s. 00. , ,, . 

ib) “De ce qui est requis pour fonder la Prescription ordin^. 



rRKSCRIPTIOK 


36 ^ 


trovertible a proposition as that the property and peace of 
individuals rest upon the same doctrine (c). 

To these remarks should be added the observation of a 
great modem jurist (d) : — 

“ The general consent of mankind has established the 
principle, that long and uninterrupted possession by one 
“ nation excludes the claim of every other. Whether this 
“ general consent be considered as an implied contract or as 
<< positive law, all nations are equall}' bound by it, since all 
“ are parties to it ; since none can safely disregard it without 
impugning its own title to its possessions ; and since it is 
“founded iqmn mutual utility, and tends to promote the 
“ general welfare of mankind.” 

In one of those treatises (e) which show how deeply the 


Fattp-l, Le Droit ties Gm», t. i. 1, ii. c. xi. 8. 142. * And agiun : “ Mais 
Ri la nation prot^g^ ou aountise a certaines conditions ne resists point 
anx entreprises de celle dont die a recherchd I’appni, si ello n’y lUit 
aucune opposition, si ello garde lU) profond silence quand elle demit et 
pourrait pailer, aa })atience, aprfes tin temps considerable, forme un con- 
sentement tacite qui legitime le droit de rusnrpateur. T1 n'j nurait rien 
do stable parrai les hoinmes, et surtout entre les nations, si uno longue 
passcssion, accompagn^e dn silence dcs int6ress(is, ne produistut un certain 
droit Mais il font bien observer quo le silence, pour maiquer un consente- 
ment tadte, doit ^tre volontaire. Si la nation infiSrieiire proure que la 
violence et la crainte ont ^toultlS les timoignages do son opposition, on ne 
[leut non concluro de son silence, et il ne donne ancun droit & I’usar- 
pateuT,”— t. i. c. xvi. s. 199. 

See list of autliorilies on the doctrine of Intematioual Pivscription 
given by Omptfda, 612, s. 21 3, Lit. des Volkerrechh. 

(c) Vattel, 1. U. c. xi. s. 142. 

(d) JVheatoH, vol. i. c. iv. s. 6, p. 207. 

“ Es liessen sich viele Buispiele, uuter andom in Deutschland nach- 
woisen, wo das Recht der Staategewalt nur auf langen Bositzstand 
gegriindet ist, ohne erweislichen Rechtatitel.” — Jlejtfr, s. 69, 1. 

(e) Vol. ix. p. 449. Letter to It. Bivrhtf E«q. 

See, too, vol, x. p. 97 : Beform of Bepremitation in t/te Haute, of 
Comtnont. “ Prescription is the most solid of all titles, not only to pro- 
perly, but, which is to secure that property, to Government.” And voL v. 
p. 274: “"With the National Assembly of France possession is nothing, 
law and usage are nothing. I see the National Assembly openly re- 
probate the doctrine of Prescription, which one of the greatest of their 
own Lawyers (Domat) tells us, with great truth, is part of the Iaw of 



366 


I2«TEUNAT10NAL LAW. 


mind of the writer was imbned with the principles of general 
jurisprudence, Mr. Burke uses the following admirable ex- 
pressions: — 

“ If it were permitted to argue with power, might one not 
ask one of these gentlemen, w'hethcr it would not be more 
“ natural, instead of wantonly mooting these questions con- 
“ ceming their property, as if it were an exercise in law, to 
” found it on the solid rock of prescription ? — the soundest, 
the most general, the most recognized title between man 
** and man that is known in municipal or in public jurispru- 
“ dence ; a title in which not arbitrary institutions but the 
“ eternal order of things gives judgment; a title which is not 
“ the creature, but the master of positive law ; a title which, 
** though not fixed in its term, is rooted in its principles in the 
“ Law of Nature itself, and is indeed the original ground of 
all known property; for all property in soil will always be 
“ traced back to that source, and will rest there. . . . 
“ These gentlemen, for they have lawyers amongst them, 
“ know as well as I that in England we have had always a 
“ prescription or limitation, as all nations have against each 
“ other. . . . All titles terminate in Prescription ; in which 
“ (differently from Time, in the fabulous instances) the son 
“ devours the father, and the last Prescription eats up all 
" the former ” (/). 


Nature. He tells us that the positive ascertainment of its limits and its 
security from invasion were among the causes for which ciril society 
itself was instituted,” — Rejl^tims on the Revolution in France. 

(/) The Ahbe de Mahlj/, speaking of the Treaty of the Pyrenees, 
which followed the Treaty of Westphalia (1659), observes: “Lc Roi 
de France proteste centre toute prescription et laps de temps, an snjot 
du Royaume de Navarre, et se rdserve la faculW d’en faire la ponrsnite 
par voie amiable, de mtime que tons les antres droits qnils pr<*tond lui 
appartenir, ct auxquels lui ou ses prttdtesscurs n’ont pas renoned”— 
{Trmit de Fismn, rappdf par le Traits, dvt VyrMts, art, 23. Traiti des 
Pyrites, art. 89.) “ Tons les auteurs qui ont dcrit sur le Droit des Gens 
conviennent qne la prescription rend legitimes les droits les plus Equi- 
voques dans leuT origine: et ce qui prouve la sagesee de ce principe, e’est 
qu’il est de I’intErEt de cheque nation en particulier de I’ndopter. La 
difBcultd connate It savoir, comment la prescription s'acqniert; pourmoi 
je croirois qu’elle ne peut etre Etablie que par le silence do la partie lEsEe, 



PREfl(;RlPTION. 


367 


CCLX. In tlie foregoing observations, the foundation 
of International Prescription has not been necessarily laid 
upon the abandonment or dereliction of the State to whom 
the possession formerly belonged. It has been placed upon 
the length of time during which the possession has been 
held by the State which prescrUtes for it. It is important 
to establish clearly that dereliction does not, in the case of 
nations, necessarily precede presenptive acquisition. Much 
of the uncertainty and confusion in the writings of Inter- 
national Jurists upon this subject may be ascribed to the 
want of firm discrimination and clear statement upon this 
point. 

Dereliction or voluntary abandonment by the original pos- ’ 
scssor may be often incapable of proof between nations 
after the lapse of centuries of adverse possession ; whereas 
the proofs of prescriptive possession are simple and few. 
They are, principally, publicity, continued occupation, 
absence of interruption aided no doubt generally, 

both morally and legally speaking, by the employment of 
labour and capital upon the possession by the new possessor 
during the period of the silence, or the passivencss (inertia), 
or the absence of any attempt to exercise proprietary rights 
by the former }iossessor. The period of time, as has been 
repeatedly said, cannot be fixed by International Law 
between nations as it may be by Private Law between 
individuals : it must depend upon vaidable and varying cir- 
cumstances ; but in all cases these proofs would be required. 

Now it has been well observed by a recent writer (y), that 
in cases where the dereliction is capable of proof, the newj 
possessor may found his claim upon original Occupation; 
alone, without calling in the aid of Prescription. The loss' 


quand elle traite avec le Prince qui possMe eon bien, ou que celui*ci le 
vend, le cMe et I'ali^ne en qucique autre mani^ro. 1.6 silence dans ces 
occanons ^niTaat d un consentement.” — Drmt publie, t, i. p. 31. 

(j7) Monsieur Evghut Ortolan. See his chapter on Prescription aequi- 
dtive, in bis work JDu Jhmaine international (Paris, 1861). , 



ggg INTEENATIONAIi LAW. 

of the former, and the gain of the later possessor, are distinct 
and separate facts. Whereas, in cases of Prescriptive 
Acquisition, the facts are necessarily connected ; the former 
possessor loses, because the new one gains. 

CCLXI. There was a dispute of long standing betweefi 
France and England respecting Santa Lucia, one of the, 
Antilles Islands. After the Treaty of Aix-la-Chapellc 
(1748), the matter was referred to the decision of certain 
^Commissioners, and it Avas the subject of various State 
.Papers (A) in 1761 and 1754. The French negotiators 
maintained, that though the English had established them- 
selves in 1639, they had been driven out or massacred by 
the Caribbees in 1640, and they had, ammo ct facto and shu; 
spe redeundi, abandoned the island ; that Santa Lucia being 
vacant f the French had seized it again in 1650, when it 
became immediately, and without the necessity of any pre- 
scriptive aid, their property. The English negotiators con- 
tended that their dereliction had been the result of Anolence, 
that they had not abandoned the island sine spe redeundi, and 
that it was not competent to France to profit by this act of 
violence, and surreptitiously obtain the territory of another 
State ; and that by such a proceeding no dominium could 
accrue to them. The principal discussion turned, not upon 
the nature of the conditions of Prescriptive Acquisition, but 
upon the nature of the conditions of Voluntary Dereliction, 
by which the rights of property were lost, and the possession 
returned to the class of vacant and unowned {dBearwora) 
territories (i). 


(A) Ei^bm Ortolun, Du Domaine internatimd, p. 111. 
(i) Vide post, Chap. xvi. : ExTiaciioii or DouiiriON. 



DERIVATIVE ACQUISITION. 


369 


CHAPTER XIV. 

DERIVATIVE ACQUISITION. 

CCLXIT. We now enter upon the second kind of Acqui- 
sition, viz. that which in the system of Private Law is called 
Derivative. 

Derivative Acquisition (a) is said to be that which takes 
place by the act of another, or by the act of the law {acqui- 
sitio derivativa, vel facto hominis, vel facto legis). In this 
system not only Individuals, but Corporations or legal per- 
sons, are enabled to acquire and to alienate rights of pro- 
perty, tlu’ough the medium of a representative, as minors 
and lunatics are in all systems of jurisprudence enabled to 
act through their guardian or tutor. 

Who the representative of the corporation may be, 
depends upon the constitution of this legal person. But, 
as a general rule, the will of a corporation is expressed not 
.only by the unanimous assent, but by the assent of the major 
part of its members. The rule that the will of the corpo- 
ration may be collected from the agreement of a part of 
its members seems to be founded in N atural Law, as other- 
wse the body might be prevented from acting at all {b). 


(a) Eughno OetdoOf p. 23. 

U^ter, 8. 71. 

(i) “ — quod a tn^ore parte ordinis salubriter fuit constitutum.” — 
Cod, X. t. 32, 46. Dc Dmtr. 

“ Quod major part evria effecit, pro eo habetur, ac si oiunes egerint.” 

-Dig. 1. 1, io. 

Saoigny i2. Jt. s. 97. 

But see Burke, vol. vi. p. 212 : Apped from the New to the (M Whigt. 
VOL. I. B B 



370 


INTERNATIONAL LAW. 


The constructive whole, therefore, is holden, for certain pur- 
poses, to reside in a part only. 

Turning from the system of Private to the system of In- 
ternational Law, we find that it is competent to one State 
jx)sse888ed of property to alienate it, and to another to receive 
the alienated portion. So far the analogy is sound between 
the State and the Individual or the Corporation ; the rights 
incident to a proprietor attach in both cases. But, in the 
case of the State, it may be a matter of theoretical and prac- 
tical difficulty to ascertain where and in whom tlie power 
of acquiring and alienating is lodged? in whom what has 
been happily called “ the contracting capacity ” (c) of the na- 
tion is vested (d) ? whether the general procuration of the 
State (/') be placed in the hands of one man, or of a few, or 
of a majority of representatives ? The solution of this grave 
question belongs rather to the province of Public and Con- 
stitutional than to that of International Law {/). It has, 
indeed, been discussed by writers on International Law, 
especially by Grotius (ff) and Vattel (/<): but both those 
writers dealt, on this as on other occasions, with subjects 
which belonged to the sphere of the Publicist rather than 
that of the International J urist. 

CCLXlIf. Grotius (i) divides all kingdoms into Patri- 


(c) liurke, vol. ix. p. 384 : Tract$ on Popery Lates, c. 3, in jvnt, 

(d) Vitle poist, the Act of BeaitDciatioa of the Qrand iKichy of Tus- 
cany by Ijeopold IL, on his accession to the throne of Austria, in favour 
ol his second son. — Martent, liec. de Trades, vol, iv. p. 470. (A.T). 1790.) 

Puyhie Ortolan, pp. 14, 35. 

JttUlteiforth, Int^idutet of Natural Law, c. viii. 

Savifftiy R. R. s. 140, b. iii. p. 310. 

(e) Burke, vol. vi. p, 212 ; Appeal from the New to the Old Whips, 

(/) Grotius, 1. ii. c. vi. 

Wheaton's Elements, pp. 102-Jl, 

Giinther, pp, 1 1-77, Bach 2, Kap. ii. 

(. 4 ) Grotius, 1. ii. c. vi. : De acqmsitione derivativa facto hominis, vbt 
dc alienalimte imperii, et rerum imperii, 

(A) Vattel, 1. i. c. xxi. : De f Alienation des bietts puldics, et de cdle 
dune partie de VEtat, 

(*) De Jure Belli, 1. i. c. iiL— Deittcc. Predec, 



DEUIVATIVE ACQUISITION. 


371 


monial and Usufructuary ; and he reckons among the latter 
all kingdoms over which the people elected a Governor, and 
all that are acquired by treaty or marriage. Patrimonial 
kingdoms, he seems to think, may be alienated by their 
rulers without the sanction of the people ; but Usufructuary, 
not without their consent. Whatever countenance this doc- 
trine might have derived from the practice and principles of 
the time in which Grotius lived, it can hardly be predicated 
of any Christian, and certainly of no European State (;) at 
present existing in the world. Puffendorf, indeed, lays it 
down as law, that the general presumption is against the 
power of the sovereign to alienate, without the consent of 
his subjects, any porjiioii of the public property or domain ; 
and the doctrine is distinctly and indignantly repudiated by 
Vattel (A) ; nevertheless, a miserable attempt was made in 


ij) Dio liigonwchaft eines Patrimonial-Staates (das hdsst, dass der 
llegeiit nach liuje^Ukurnsrecht iiber den Staat verfiigen konne) ist in 
Km-opa duTch Staatsjrrnndgesolze nirgend festgesetzt.*’ — KlUber, s. 31. 

He will discover that when Grotius examines the subjects in detail 
ho excludes every case of pdlrimomal governments. The fair conclusion 
to be drawn from it is therefore this, that there is no such thing as a 
patrimonial government." — Lord Gremille, Dehate on lilochulc of Norway ^ 
May 10, 1814. Hamards ParL Deb, 

(k) “J’ai os(S cependant inMcarter qiielquofuis de inon guide, et 
m\)ppoaer a ses soiitijneut.s ; jeii donnerai ici quelquea exemplea. M. 
AVolf, eutraiiid peut-etre par la foule dos 6crivains, consacre plusieiirs 
pro^wsitions h traitor de la nature des royaumes patrim<yiiiati:(^y sans re- 
jetor on corriger cetto idi^e injiirieuse a riiumauit^. Je u’admets pas 
mome la denomination, que je trouve t?galeinent choquant, impropre, et 
dangereuse dans ses effets, dans les impressions qu’elle pent donner aux 
souverains ; et je me flatte qifen cela j’obtiendrai le suffrage de tout 
homme qni aura do la raison et du sentiment de tout vrai citoyen.’^ — 
yattej^ PrSface. 

And again, 1. i. c. v. : Nous no voyons point en Europe de gmnd 
Etat qui soit rdpute alienable.” 

In another jmrt of his work he limits tlie power.of alienating national 
property as follows : — I^e corps de la nation ne pent done abandonner 
line province, uue ville, ui meme iin particulier qui en fait partie, a moins 
que la n^cesslt4 ue Yy contraigne, ou que les plus forts raisons, prises du 
salut public, ne lui en fassent une loi,** — L. i. c. ii. 

de. Jure Nat. et Gent. 1, viii. c. xii. ss. 1-3. 

Vattelj 1. i. c. xxi. s. 2tK) : “ 11 no pout alidner les biens publics/’ 

B n 2 



372 


INTERNATIONAL LAW. 


1814 to ])alliate the guilt of the forcible annexation of Nor- 
way to Sweden by an appeal to the authority of Grotius. 

CCLXIV. So far, indeed, as respects the conduct of 
thinl parties in transactions of this nature. International Law 
may claim to be heard. How far the right of Self-preserva- 
tion (which includes the right of preventing the undue ag- 
grandisement of any {tarticular Power) justifies the Inter- 
vention of third Powers, will be hereafter considered. 

The rule which, according to the true principles of Inter- 
national Law, ought to be binding upon all nations who are, 
as it were, bystanders in such transactions, is, rigidly and 
punctiliously to abstain from interfering to compel by force 
cither part of the nation, whether it be. that which wishes to 
alienate or that which refuses to be alienated, to adopt the 
one course or the other. To do otherwise, is directly to 
violate the most sacred principle of the jurisprudence of which 
we are treating, to trample in the most oftensive way upon 
the indepehdence of a nation, by assuming the judicial office 
upon the nicest and most vital questions of her constitutional 
law', and the executive office, in carrying this unwarranted 
and illegal decision into effect. 

CCLXV. When in 1814 Norway refused, as she did, by 
the actual and constructive voice of her people, to be annexed 
to Sweden, the question should have been left, aecording to 
the spirit and letter of the law, to the decision of arms be- 
tween the two countries. It is painful and humiliating to an 
Englishman (1) to think that this abhorred union, for such it 
was at the time, was effected, partly, by the blockade of a 
British fleet. The plea that such a union formed part of the 
provisions of a general treaty of peace, which had for its 


(i) 6ee tLo debatoa in l)oth Houses of Parliament on the blockade of 
horway, 181.4, HiamartPs Pari. Deb,, especially tUo spooebes of Lord 
OrmvUlo and Sir James Maebiniosh, which contain an admirable oxpo- 
siiion of the soundest principles of International Law. I^oid Grenville 
condemns Ae act ns subversive of public morality, as opposed to the 
au only of all writers upon lutevoational Law. aa justify ini? in principle 
the aggresaiona of France for the preceding twenty years. 



DEBIVATIVE ACQUISITION. 


373 


object the re-establishment and pacliioatiou of Europe, after 
years of bloodshed and misery, did not justify the grievous 
injustice, the intrinsic illegality of this act. The delivery of 
Genoa to Sardinia, after that republic had yielded to our 
arms on the faith of its national independence being pre- 
served, was as wrongful an act, accompanied with the 
additional sin of violating a faith specifically pledged. To 
both these cases the expressions of Martens — no favourer 
of democracy — were fully applicable : “ II en est de meme 
“ de rimpossibilite morale d I’^gard dcs trait^s dont I’accom- 
“ plissemeut blesserait les droits d’un tiers ” (m). 

CCLXVI. Though such be the rule of law to which 
nations, being in the condition of third parties and bystand- 
ers, should scrupulously adhere, there can be no doubt that 
one nation may by its proper organ, whatever that may be, 
alienate, and that another nation may receive, property. 
It is, moreover, of the last importance to remember that a 
nation which allows its ruler, either in his own person or 
through Ilia minister, to enter into negotiations respecting 
the alienation of property with other nations, must be holden 
to have consented to the act of the ruler ; unless, indeed, it 
can be clearly proved tliat the other contracting party w'as 
aware at the time that the ruler in so doing was transgress- 
ing the fundamental laws of his State (n). 


(»t) Morlentf Des Traitia non cMiyatoirea, 1. ii. c. ii, s. 53. 

(ra) ** A Voccasion du meiue traits de Madrid, dout nous venous do 
pnrler, los notables du royauine de France, a8serabl6s & Cognac, apr&s le 
retour du roi, coucluront tous d'une voix, 'quo son autorittS no s'dWndait 
point jusqn’i ddmembrer la couronne.’ Le traitd fiit di^clar^ nul, coinme 
^tant contraiie & la loi fondameniale du royaumo. Et v^ritableuient il 
4t)ut fut sans pouvoirs suffisants ; la loi rerusait formellemont au roi le 
pouvoir de dlSmembTor le royaumo; le conconrs do la nation y <5tait 
ndeeassdro, et elle pouvait donuor son consenlemont par I'organe des Etats- 
S^n&iaux. Charles V no devait point rel&cher son prisonnior avant quo 
cos mdines Etats-gdn^raux eussent approuvd le traits ; ou plutdt, usant 
do M vickdre avec plus de g^tndrosik, il devait imposer des conditions 
moius dutes, qui eussent <Sld au pouvoir de JFVaw^ow I" et dont ce 
prince n'edt pa se dddue sans bonte. Mais aujourd’hui que-lcs Etata- 
gdndtaux ne s’assemblent ;^ub on France, le roi demeure le soul organe 



374 


INTEENATIONAL LAW. 


CCLX VII. Tbifi is the universally acknowledged distinc- 
tion between cases of internal transactions between tlie State 
and^its Subjects, and of international transactions between 
the State and other Nations. The reasons which support 
this leading position of International Law are perspicuously 
stated by Vattel : — 

“ II est nficessairc que les nations puissent traiter et tran- 
*< siger validement entre dies, sans quoi dies n’auraieut 
“ aiicun moyen de ternaiuer leurs affaires, de se mettre dans 
“ un ctat tranquille et assure. D’oh il suit que quaud une 
" nation a ced6 qudquc partie de ses biens A une autre, la 
“ cession doit dre tenue pour validc et irrevocable, comme 
“ die Test en effet, en vertu de la notion de proprietc. (-e 
“ piinctpe ne pout etre ^brauld par aucune loi fondainentalo, 
“ au moyen de laqudle une nation pretendrait s’dter a elle- 
“ meme le pouvoir d’aliener ce qui lui appartient. Car ce 
“ serait vouloir s’interdire tout contrat avee d’autres peuples, 
“ ou priitendre les tx'ompcr. Avec une pareille loi, une nation 
“ ne devralt jamais traiter do scs biens : si la necessity I’y 
“ oblige, ou si son propre avantage I’y determine, des qu’elle 
“ entre en traits, elle renonce A sa loi foudamcntale. On ne 
“ conteste guere A la nation enticrc le pouvoir d’aliener ce 
“ qui lui appartient ; mais on demandc si son conducteur, si 
“ le souverain a ce pouvoir. La question pent dre ddeidee 
“ par les lois foudamen talcs. Les lois ne disent-elles rieu 
“ directemeut la-dessus? Void notre second principe. 2® Si 
“ la nation a d<ifer6 la pleine souverainetd a son conducteur, 
" si elle lui a commis le soin, et doime sans reserve le droit 

de I’Etat envers les autres puissances ; dies sent on droit de prendre sa 
volouW pour celle do la France entifire, et les cessions que le roi pourrait 
leur faire deineureroient valides, on vertn du consentemeut tucite par 
loquel la nation a romis tout pouvoir entre les mains de son roi, pour 
traiter avec elles. S'ii en otait autrenient, on ne pourrait contractor 
sftiemont avec la conronne do France, t^uvent, poor plus de pr^*- 
caution, les puissances ont demands que leurs trait^s fussent ehregistr^ 
an parlement de Paris : mais aujonrd’hui cette fonualit^ m^me ne parait 
plus en usage.” — Vattel, 1. i. c. xxi. s. 266. 

Kent's Cainm, Part I., Lecture viii, s, 3. 



DEBIVATIVE AQCUI81TI0N. 


375 


<< de traitor et do contractor avec Ics autres Etats, elle est 
cens^e I’avoir revStu do tons Ics ]K)uyoirs n^ccssaircs pour 
“ contractor validemcnt. Le prince est alors I’organe de la 
« nation ; ce qu’il fait est repute fait par elle-memc ; et bien 
“ qu’il ne soit pas le propri^tairc des biens publics, il les 
“ alidne valideinent commc <§tant ddment autorisc ” (o). 

CCLXVm. Upon the same principle, when foreign 
Governments or their subjects have obtained from the dc 
facto Government of a country, by treaty or otherwise, a 
part of the national domain of coutiscated property, if the 
sovereign de jure be restored, he cannot annul this contract 
or cession. Whatever power he may possess to annul alie- 
nation made to his own subjects, the acts of the de facto 
Government, though it was that of a usurper, are binding 
upon him as to all international transactions ( />). 

There can be no doubt, then, that a State may make 
acquisitions by the acceptance of property transferred to it 
from another State. This transference may be effected iu 
as great a variety of ways iu the case of the State, as iu the 
case of the individual. 

According to the principles of Private Law, the delivery 
{traditio) of possession (ijr) eflfected a change of ownership 
{dominii), the deliverer transfers the rights which he had 
enjoyed to tlie receiver (r). 

The validity of the transaction depends upon considera- 
tions relating to — 


(o) Vattel, 1. i. c. xxi. s. 202. 

(p) Qrotim, 1. ii. c. xvi. s. 10. 

Wheaton, EletJumUt, vol. i. p. 102. 

MMy, Dro&piUt. t. ii, p. 271. 

iq) Use quoque res, que traditioue uostrse fiunt, jure gentiiini nobis 
acquiruutar; nihil enim est tain conveniens natumli aeqiiitati, quam 
voluntatem domini volentis rem suam iu aliuiu trausfene nitaui haberi.” 
•—2%. xli. t. i. 9, 3. 

'^Traditionibus et usacapionibiis dominia return, non uudis pactie 
tmnsferuntur.”— CW. ii. 8, 20 (fe Pactin). 

(r) '^Quotiea autem dominium transfertur, ad eum qni accipit hale 
transfertur, quale fait apud eum qui tradit.’~2)«i5r. ili, t i. 20, 1. 



376 


INTEKNATIOKAL LAW. 


1. The person delivering or transferring the property. 

2. The cause of the transference. 

3. The form and manner in which it is transferred. 

1. The person («) must have the will and the power to 
alienate the thing, and the alienee the will and power to 
receive it. 

2. The cause {t) must be lawful and just; that is to say, 
it itupt be such as warrants the transference, and must not 
rela^ to a class of things which may not be alienated. 

3. The form and manner (m) need not be such as to 
convey the thing by corporal seisin ; overt acts indicating 
the intention of the alienator or symbolical delivery may 
suHice. 

The Treaty of Partition in 1700, which parcelled out among 
various European nations the dominions of the Spanish crown 
upon the demise of the wearer of it, without the consent 
either of him or of the nation, provided by its ninth article 
that the Kingdom of Spain should never be held in joint ptis- 
session with that of France or Germany, however it might 
have accrued to either of these counti’ies — “ soit par mcccs- 
** sion, testament, coritrat de mariage, donation, ech<mye,cession, 
“ uppel, rioolte,o\i. quelque autre voie que ce soit.” And in 
that part of the great Treaty of Utrecht, which in 1713 w'as (*) 


(*) “Traditio nihil amplius transferro debet vel potest ad eum qui 
accipit, qiiam est apud euui qni ttadit. Si igitur quia domininm in liindo 
habuit, id tradeudo transfert; si non habuit, ad eum qui accipit vihil 
transfert.” — Dig. xli. t. i. 20, 1. 

** Nihil autem interest utrura ipse doraiuus tradat alicui rem, an volun- 
tate ejus alius cui ejus rei possestdo pormissa sit.” — Itui. ii. t. i. 42. 

(t) “ Nunquam nuda traditio transfert dominium, sud ita, si venditiu, 
aut justa eausa, prsecesserit propter quam traditio sequei'etiir.”— 
Dig. xli. t. i. 81. 

(ft) Dig. zln. t. iii. 79, de Solut . ; xli. t. ii. 18, 2 ; xxiii. t. iii. 43, 1, 
dej. dot, 

** Interdum etiom sine traditione nuda voluntas domini sufficit ad rem 
transferendam ; veluti si rein, quam comraodavi aut locavi tibi aut apud 
te deposui, vendidero tibi ; licet enim ex ea causa tibi earn non tradi- 
deriin, eo tamen quod patilor earn ex causa emtionis apud te esse tuaiu 
effimo.” — xli. t. i. 9, 6. 



DERIVATIVE ACQUISITIOX. 


377 


concluded between France and the States-General> it was 
provided: “On est aussi convenu qu’aucune Province, Ville, 
“ Fort, ou Place desdits Pais-Bas Espagnols, ni dc ceux qui 
“ sont c^ez par sa Majeste Tres-Chr(Stienne, soient jamais 
“ c^cz, transportez, ni donnez, ni puisscnt 6choir k la Cou- 
“ ronne de France, ni a aucun Prince ou Princesse de la 
“ Maisonou Ligne de France, soit en vertude quclque Don, 
“ Vente, Echange^ Convention matrimoniale, Successimjpor 
“ testament, ou ah intestat, ou sous quelqu’autre Titre^he ce 
“ puisse Stre, ni ctre mis de quelque mani^e que ce soit an 
“ pouvoir, ni sous I’autorite du Roi Tres-Chretien, ni de 
■ quelque Prince ou Princesse de la Maison ou Ligne de 
“ France ” («). 

These provisions contain an enumeration of every conceiv- 
able mode of acquisition, except that of original occupation, 
discussed in the foregoing chapters. Many historical ex- 
amples may be cited of these International titles to property. 

CCLXIX. The exchange of territories, and especially 
of ]K>rtions of territories, is familiar to all who are acquainted 
with European History, and with the provisions of the prin- 
cipal treaties. Thus, in tlie Treaty of Nimeguen, it is pro- 
vided by Article XIV., “pour prcvenir toutcs les diffi- 
“ cult6s que les enclaves ont caus^es dans I’exdcution du 
“ traite d’Aix-la-Chapelle, ct nltablir pour toujours la bonne 

intelligence entre les deux couronnes, il a 6t6 accorde que 
“ les terres enclav^cs seront 6chang6es centre d’aiitres qui 
“ se trouveront plus proches et ii la bieus6ancc de S. M. 
“ Catholiquo,” &c. The islands of Sardinia and Sicily (g), the 


(a’) Qiintlufr, vol. ii. p. 91. 

Art. xiv. Schmamn, p. 1393. 

(y) “ Reference had been made indeed to other territorioa, the Gter- 
manic body, the States of Italy, Sicily, &c., where cessions were frequent ; 
but they wore only nominally independent ; they were attached to larger 
Idngdoms j they were the infirm and palsied limbs of Europe, and became 
mvariaUy the first points of attack in every war .” — Hansards Ikbates 
Blockade of Norway, 1814, Speech of Sir James 



378 


INTEBNATIONAL LAW. 


Duchies of Tuscany^ Parma, and Placentia, were continually 
exchanged with each other in the multiplicity of entangled 
negotiations which intervened between the Peace of Utrecht, 
in 1713, and the Treaty of Alx-la-Chapelle^ in 1748. By 
the 6th Article (x) of the Quadruple Alliance in 1720, 
Philip V. of Spain renounced the reversionary title on Sicily, 
conferred on him by the Treaty of Utrecht, and received in 
exdianjge a reversionary title to Sardinia ; and by the first 
Article, the Duke of Savoy made a reciprocal renunciation of 
his rights to Sicily. By the same Treaty, it was agreed that 
the reversion of Tuscany, Parma, and Placentia, about to be 
vacant by the extinction of the male descendants of the 
Houses of Medici and Famese, should be declared male fiefs 
of the Empire, and the investiture be conferred by the Em- 
peror on the eldest son of the second wife f Elizabetli Farnese) 
of Philip V. (a). 

By the Treaty of Vienna, in 1738, Tuscany was given, in 
reversionary exchange for the Duchy of Lorraine, to the 
Duke of that province ; Naples and Sicily to Don Carlos, 
the son of Philip V.; while Parma and Placentia w’ere 
ceded to the Emperor. 

In 1790, Leopold II., succeeding to the Austrian Empire, 
renounced by a formal act — in which his eldest son Francis 
(afterwards Emperor) joined — his sovereignty over Tuscany, 
in favour of his second son, Ferdinand HI., who confirmed 
the act, and accepted in due form the sovereignty. These 
actes,” the address of the Begins Advocatus, and the re- 
ply of the Senate to the Grand Duke through their organ 
the principal Senator, are all contained in what is called in 
the Diplomatic Code the “ Acte de cession du Grand-Duche 
de TosCane d la branche puisn^e de la maison de I’Au- 
triche ” (6). 

(z) Xoeh, Eiri. dea Tr. t. i. c. xiii. p. 286. 

(a) Koehy t. i. c. xv. p. 266. 

i^MartvM, Bee, de tom. iv. (1786-00), p. 476: “Acte de 

lenondation de S. M. 1. et R. Leopold II, par rapport au Grand-Doclid 
de Toflcane, en fitveur de S. A. B. I'Archiduc Ferdinand, son second fils, 



DEUIVATIVE ACQUISITION. 


379 


By the last Treaty of Vienna (1814-15 (c) ), these Italian 
provinces were again parcelled out among various Powers ; 
and the Stati dci Prcsidi (a district belonging anciently to 
Sienna), the Island of Elba, and the Principality of Piom- 
bino (over which the Crown of Naples had exercised feudal 
rights ((f) ), were thrown into the portion of Tuscany, and 
jrivcn to the Archduke Ferdinand of Austria. 

CCLXX. Cessions (e) of territory are generally conse- 
quent on war, and the subjects of provisions in the Treaties 
which conclude it : but instances are .,to be found of their 
taking place in the time of peace. In 1777, Portugal ceded 
to Spain the Islands of Annobon and Fernando del Po, in 
order to facilitate the slave trade of Spain with the coast of 
Africa. In 1784, France ceded to Sweden the islands of 
St. Bartholomew in tha West Indies, in return for the free 
use of the harbour of Gottenburg, and certain other com- 
mercial advantages. A recent instance of cession is aflforded 
by the Convention in 1850 between Great Britain and 
Denmark, whereby Denmark ceded to Great Britain, in 
consideration of the sum of ten thousand pounds, all the 
possessions of the Danish Crown on the Gold C-oast, or Coast 
of Guinea, in Africa (/). In 1867 the Russian territories 
in North America were ceded to the United States for 
7,200,000 dollars. 

CCLXXI. Gifts of territory were not uncommon in 
earlier times; for, not to mention the handsome presents, 
already adverted to, of different parts of the globe made by 

et des descendant mules de celui-ci, oniseiublo nvec Tacte d’investiture du 
(Jrand-DuchiS et la cession pleiniere de ce pays, tant de la part de S. M, I, 
tt S. A, Leopold II, que de S. A. II. rArcliiduc Francois (aujourd'hui 
Kmpereur), & la Secoiido-geiiitui'e, en date de Vienne le 21 Juill, 1790, 
Hiiisi que Tacceptatiou de S. A. R. le Grand-Due Ferdiiuiiid III de la 
confirmation des loix, statute, etc. du Grand- Ducli^ en date du 22 fdv”’ 
1791, et de rhommuge pret^ aii Grand-Due le 10 mars 1791.'* 

(c) Kochj vol, iii, c. xli. p. 403. 

{d) I. e. la iwset*ainetiy relating to U droU fcodalt distinguished from la 
9uzerainet4 which relates to droit politique, 

(f) Gunther, vol, ii. p, 04 {Abtretunp), 

{f) Annual Register, vol, xcii. p. 301, art. i. 


380 


INTERNATIONAL LAW. 


the Pope to Spain and Portugal, John XYIII., in 1004, 
offered the island of Sardinia to whomsoever would take 
it from the Saracens ; and Boniface Ylll. {g), in 1297, bc> 
stowed the same island, together with Corsica, upon James 
II. of Arragon. In 1485, Queen Charlotte of Cyprus (A) 
gave that island to Diike Charles I. of Savoy ; and, in 1530, 
the Emperor Charles Y. (i) gave Malta to the Knights of 
St. John. We may pass over the earlier alleged donations 
of Pepin and Charlemagne to the Homan See, and the ac- 
quisitions of the French Crown by gift, such as the province 
of Dauphine in 1349. 

CCLXXII. The history of Louisiana furnishes a more 
recent and very remarkable instance of the practical ap])li- 
cation of some of the foregoing modes of acquisition by in- 
dependent nations. 

By a secret Convention [f) (never, it is said, yet printed) 
between the Courts of Yersailles and Madrid, on November 
2, 1762, New Orleans, together with that part of Louisiana 
which lies on the western side of the Mississippi, was ceded 
to Spain. The object of this cession was to indemnify 
Spain for the loss of Florida, which, by the preliminaries of 
the memorable Treaty of Paris (A), she had given up to 
Great Britain ; and, in spite of the remonstrances of the 
French inhabitants of Louisiana, Spain took complete pos- 
session of this province in 1769. 

By a secret Treaty concluded between the French Re- 
public and Spain, at Saint Ildefonse, on October 1, 1800, 
Spain engaged to retrocede to France — six months after 
the fulfilment of certain conditions relative to the Duchy of 
Pai'ma, in favour of the daughter of the King of Spain— the 
province of Louisiana as at that time possessed by Spain. 

(jr) Qvnther, vol. i. p. 06; ScJitnauss, vol. L p. 14. 

(A) Sdktnmtss, vol. i. p. 124. 

(t) Ounther, vol. i. p. 06. 

Ij) Eochf JBBtt. det TraitiB, c. xvii. ; TraitfB de Pam et de Suberte- 
hourly vol. i. p. 862. 

' (k) The secret Convention was signed on the some day as the preli- 
minaries of the Treaty. The Treaty itself was nut signed till 1768. 




DERIVATIVE ACQUISITION. 


381 


Aa soon as this Treaty was made known, (jreat Britain 
and the United States took alarm, and determined to oppose 
to the utmost its completion. Buonaparte, then First Consul, 
urged by the difficulty of his position, and partly perhaps 
also by his need of pecuniary resources, resolved upon the 
expedient of selling his new, or rather inchoate, acquisition 
to the United States. To this bargain, however, he gave the 
name of Cession, and it was effected by the Treaty of Paris 
of 1803 between France and the United States of North 
America. The words of the Convention were remarkable ; — 

“ Attendu, y est-il dit, que par I’article 3 du Traitc conclu 
“ a Saint-Ilddfonse, le 9 vendemiaire, an ix, eutre lo Pre- 
“ mier Consul de la Republique Franpaise et S. M. C., il a 
“ et^ convenu ce qui suit: [iciest insdrcrarticlc;] etcomme, 
“par suite dudit traite, et sp^cialcmcnt dudit art. 3, la 
“ Republique Fran 9 aise a un titre incontestable au domainc 
“ et ^ la possession dudit territoire, le Premier Consul de la 
“ Republique, dcsirant de donuer un temoignage remarquablc 
“ de son amitid aux dits Etats-Unis, leur fait, au nom de 
“ la Rdpublique Fran 9 aise, cession, a toujours et en pleine 
“ souverainete, dudit territoire, avec tous scs dn>its et appar- 
“ tcnances, ainsi et de la maniere qu’ils ont ete acquis par 
“ la Rdpubliquc Fran 9 aise, en vertu du traitd susdit, conclu 
“avccS. M. C.’’(/). 

The peculiarity of this form arose from the fact that the 
Treaty of October 1800 had never been formally executed 
by either of the contracting parties. The ninth article of 
this Treaty provided that two particular conventions, to be 
signed the same day, should be considered as inserted in the 
Treaty itself. The first contained the stipulation that sixty 
millions of francs should be paid to France ; the second, that 
all claims upon France by the United States for illegal cap- 
tures or other matters should be considered as discharged. 

It belongs to the province of the historian to record the 
ineffectual regret of deceived and injured Spain, and the 


if) Kochf vol. u. p. 322. 


382 


INTERNATIONAL LAW. 


sagacity of the United States in profiting by the troubles of 
Europe, both at this period and subsequently by the acquisi- 
tion of Western Florida. But it should be observed here that 
the instance illustrates national acquisition by gift^ sale, and 
exchange, and that the title of the United States to this 
acquisition has never been questioned. 

The fate of Venice has been remarkable. Bestowed like 
a chattel upon Austria by the First Napoleon, she obtains 
her liberty from his nephew in a manner which could scarcely 
have been foretold. 

In the war of 1866 between Prussia and Austria, in which 
Italy was the ally of the former Power, Austria ceded to 
France Venetia, which France accepted, and, by the Treaty 
of Vienna, August 24, 1866, conferred upon Italy an arrange- 
ment recognized by a Treaty of the 23rd of October in the 
same year between Austria and Italy (m). 

CCLXXIII. The Election of an individual to the sove- 
reignty of a State, though not strictly speaking a mode of 
acquiring territory, may indirectly be the cause of it, when 
the elected person is already ruler over an independent 
kingdom, to which the new State becomes united. Thus the 
Poles, by the election of the Duke Jagello in 1386, united 
Lithuania to their own kingdom. And this result may ensue 
not only in the case of an elective sovereignty, but also in the 
instances, not infrequent in history, of the failure of the first 
line of sovereigns, and the consequent necessity of choosing 
a collateral branch (n). 

Towards the close of the fourteenth century (o) (1375) the 
race of King Svend Estrithson became extinct in the person of 
Waldemar IV. His grandchild Olaf, the son of his youngest 
daughter Margaret, wife of the King of Norway and the 
asserted heir of Sweden, was chosen successor to the throne, 
because he would eventually unite Norway with Denmark (p) 

(m) Reg. 18(^, p. 280. 

(n) Q^intJier^ vol. ii» p. 97. 

(o) Dahlmm's OeMhichte von Danemark, Band 2, pp. 46*'75. 

(p) The senators were at first divided, some wishing for the acquisition 



DEBIVATIVE ACQUISITION. 383 

Olaf died in 1387, and his ambitious and energetic mother, 
having survived her mother and child, and seized upon the 
sceptre of Sweden in 1387, united the then Scandinavian 
kingdoms under one monarchy by the famous Union of 
Calmar in 1397. 

The election of the House of Brunswick to the throne of 
Great Britain brought with it the union of Hanover, though 
happily for a limited time only, to these kingdoms. 

CCLXXIV. Marriage {contrat de mariage') of the 
hereditary governor of a country has been frequently a mode 
of acquisition of new territory to that country, sometimes by 
the incorporation of a province, sometimes by the union of 
two distinct and independent kingdoms. 

The wife of Charles II. of England brought with her 
Tangiers and Bombay as a dowry ; and the latter has proved 
no unimportant addition to the empire of Great Britain. 
Philip III. of France acquired to the French throne the 
countries of Carcassonne and Beziers, the dowry of his wife, 
Isabella of Arragon. Alphonso III. of Portugal acquired 
the province of Algarves to the throne of that country as 
the dowry of his ivife, the natural daughter of Alphonso X. 
of Castille (y). 

Philip IV. of France acquired the independent kingdom 
of Navarre by his marriage with Joanna, Queen of that terri- 
tory ; and though, after a time, Navarre again returned to 
the government of its own monarchs, it was finally acquired 
to the throne of Spain by the marriage of Blanche of Navarre 
to John II. of Arragon in 1425. France acquired, through 
the successive marriages of Charles VIII. and Louis XIII. 
with Ann of Brittany, that great and formerly independent 

The House of Hapsburg owes its power and station 
partly to the imperial dignity which it obtained toward the 

to lie acquired by the Union ; others objecting that Denmark, an elective 
monarchy (einfrem Wahlrekh), would thereby be subjected to Norway, 
an hereditary kingdom (3ireioh), ib. 62. 

(?) Gunther, vol. ii. p. 08 {Abtretung). 




384 


international law. ^ 


end of the thirteenth century, but still more to the mar- 
riages which the Emperors of Austria have contracted with 
heiresses. 

Mary of Burgundy, the daughter and sole heiress of the 
last Duke of that name, brought with her the magnificent 
dowry of the Low Countries, including Franche-Comtc, 
Flanders, and Artois, to the Emperor Maximilian (r). The 
son of this marriage, Philip the Handsome, married the sole 
heiress of the crowns of Arragon and Castille, so that it has 
not been untruly sung by a poet of modern date, — 

Bella gerant alii, tu, felix Austria, nuhe] 

Nam quse Mars aliis, dat tibi regna Venus. 

Sometimes national rights and claims have been conferred 
by marriage. At the Peace of Noyon, in 1516, Francis 1. of 
France promised to give with his daughter on her marriage 
with the then King Charles of Castille all his rights and title 
to the kingdom of Naples ; and in the abortive matrimonial 
negotiations between the two thrones, it was stipulated that 
certain lands should be given in compensation for the non- 
fulfilment of a contracted marriage by the party causing it (s). 

The marriage of sovereigns may or may not occasion a 
permanent incorporation of territories according to the laws 
of the respective kingdoms, by which will also be governed 
the rank of each sovereign and their respective powers and 
authorities. The instances of Philip and Mary in England, 
Francis II. and Mary in Scotland, William and Mary in the 
British dominions, will readily occur as illustrations of this 
remark (^). 

CCLXXV. Successio ab intestato (Succession) is also 
among the means of national acquisition. It is true that the 
rules of Civil Law framed for individuals are not, strictly 
speaking, applicable to nations (a). The death of a nation 

(r) KocJt, Tati, dea Rev. t. i. p. 316. 

(») GuntheTf voL ii. p. 99. 

(<) Ounther, ib. pp. 100-103, and valuable notes. 

(u) GrotiiUf 1. u. c. ix. 



ij&KUIVATIVR ACQUISITION. 385 

would be the dissolution of its social and {lolltical cletnents, 
and there would be no next of kin to succeed to the property 
which it had occupied while its corporate character remained. 
But as States, represented by monarchs, have been allowed 
to acquire property through the marriage of their sovereign, 
so have they been allowed to acquire property through his 
personal relation, as next of kin, to the sovereign of another 
territory in which the government is hereditary, upon the 
decease of that sovereign without any nearer relative. The 
question has been much discussed by writers on the Law of 
Nations and upon the general principles of Jurisprudence 
— whether the succession of the next of kin to an intestate 
person be a law of Nature, or merely an institute of Civil 
Law (x). 

’ It is certain, however, that the death of the ruler of the 
State, without making any testamentary provision for his 
succession, even in countries where the power to do so is 
legitimately vested in him, can give no right to any foreign 
nation to take possession of the territory ; for in that event, 
the power of disposition devolves U|K)n the body corporate of 
the State. James I. of England succeeded to the throne of 
this country, partly by the nomination of the dying Eliza- 
beth, and partly by right of his descent. The whole question 
of succession — whether through Agnates, relations on the 
male side, or Cognates, relations on the female side— is pro- 


(j) Groims, 1. ii. c. vii. s. iii. p, 277. QroUus is amonj' the siippoitera 
of the former opinion, founded on the presumption that the deceased 
person could not have intended his property to have hecn lost, but must 
have wished it to he given to those who were dearest — that is, according 
to all presumption, those who were nearest — to him. His commentator, 
Coccinus, thinks that the rule of succession in Europe arises from the 
necessity of the case ; viz. that all land being occupied by somebody, the 
relations of the deceased would be without support if they did not suc- 
to his prospects. Sam, (3i)cceii Introd. ad Ilenr. Coccoii Grot, illustr. 
diff. proem, x. sa. 12 et 13 ; " Oum rebus terras in unirersum occupatU 
nihil ampliuB supersit quod occupari possit, vei non quantum eufficit; 
homines occupatis rebus nati succedunt in occupationem parentum,” — 
GUnther adopts this reasoning, vol. ii. p. 103. 

Pofflmdoif, 1. iv. c. xi. Dc i^iecegi. ab Litestato, 

VOL. I. C C 



386 


INTEENATIOKAL LAW. 


perly and exclusively a matter to be settled by . the constitu- 
tional law of the country itself. How far, at least, any 
exception may exist to this rule in the right of Inteh- 
VENTION which the legitimate apprehension of danger may 
confer on other nations, will be discussed in the subsequent 
pages of this work. Nor can it be denied that some of the 
bloodiest European wars have arisen out of disputed succes- 
sion to the government of kingdoms. No educated person 
is ignorant of the wars of England, under the Edwards and 
Henries, for the crown of France, — or of those horrible 
thirty years of warfare, which originated in the chum of 
the Elector Palatine of Bohemia, and which desolated Ger- 
many till the Treaty of Westphalia, — or of the general dis- 
traction and prolonged disturbance of the peace of Europe 
which arose out of the disputed succession to the House of 
Spain, and was closed by the Treaty of Utrecht. 

The claim of the sovereign of another nation is rarely 
Avithout the pretext of support from a party in the country 
which is the object of his ambition. When Philip II. of 
Spain seized ou Portugal, claiming through a young daughter 
of King Ilem’y, Avith Avhom the male line became extinct in 
1580 , to the exclusion of the House of Braganza, allied to an 
elder daughter, he was supported by the alleged free choice 
of the magnates of Portugal. The unfortunate Elector 
Palatine Avas supported in his pretensions to the kingdom of 
Bohemia by the choice and approbation of the States of the 
realm. 

A large party, both in Great Britain and Ireland, were 
favourable to the claims of the Pretender during the reign 
of the first two Georges. A similar remark is applicable to 
the Pretenders to the thrones of France, Spain, and Portugal 
in our OAvn times. 

CCLXXVI. Testamentary d^/ioj/rimihasunquestionably 
been a mode of territorial acquisition by nations, in the 
persons of their governors. But it can only be so when 
the kingdom is proprietary— a state of things which it 
has beciA already observed cannot be said now to exist 



DERIVATIVE ACQUISITION. 387 

in Europe; not even, it is presumed, in Bussia; though 
it might happen that the nation adopted and ratified the 
will of the deceased sovereign. The famous will of 
Charles II. of Spain, made (October 2, 1700) under the 
superintendence of the Cardinal Portocarrero his minister, 
and after receiving the advice of the Pope and of the most 
learned theologians — that will by which he bequeathed 
dominions upon which the sun never set to the second son 
of the Dauphin of France— is a remarkable instance of the 
exercise of this power, but one which is not likely to be 
imitated. 

In truth, the only sound rule upon the whole subject of 
these modes of acquisition, either testamento or ah intestatoy 
which can find its place in a work of International Juris- 
prudence, is this, that the voice of the people of the country, 
concerning whose government the dispute arises, should, 
through the legitimate channels of its own constitution, 
decide the question for itself in such a manner as not to 
threaten the security of other nations. 

Conquest, fortified by subsequent treaty, gives a valid 
International title to territory ; but this subject belongs to 
a later part of this work. 

The case of the acquisition of a portion of the dominion of 
Saxony by Prussia (y), in 1814, is so anomalous, that it is 
impossible to class it under any known or legitimate category 
of International Acquisition. If it belong to any, it is to 
that of Conquest and Treaty just mentioned ; but, in truth, 
it belongs to the class of transactions of which we must say. 

Non ragioniam di lor, ma guards e possa (z), 

with, however, a strong protest that no axiom of Interna- 
tional Law is to be deduced from an act, which seems, upon 
ftll the principles of that jurisprudence, indefensible. 

(y) See Talleyrand's admiraMe Mimcin raitonnS on this subject, 

de he Gfarde^ t. Hi, p. 146, 

(*) DoHtCy It^erm, Hi. 61, 


c c 2 



388 


INTERNATIONAL LAW. 


CHAPTER XV. 

ACQUISITION OP BIOnTS. 

CCLXXVn. The property of a State may not only he 
alienated, but may also be subjected to obligations and 
seriyices in favour of another State ; as the property of an 
individual may be burdened and encumbered in favour of 
another individual («). This may, of course, happen in 
various ways ; but it most freiiucntly occurs when a State, 
having contracted pecuniary obligations towards another 
State, has mortgaged its revenues, or pledged a portion of 
its territory, as a scciu-ity for the payment of its debts. 
Thus, among other instances, the United Provinces of the 
Netherlands hypothecated Vlissingen, Rameken, and Briel 
to England, in 1585. Denmark, in 1654, hypothecated the 
province of Holland to Sweden, as a security for the peace 
then concluded (5). Weimar .appears to have been pawned, 
so to speak, to Mecklenburg in 1803(c), and Corsica by 
Genoa to France in 1768. 

W e arc not .•speaking now, it will be observed, of debts 
contracted by States to Individuals (a question to be dealt 
with hereafter), but to other States. 

CCLXXVni. It sometimes happens that the debt be- 
tween the Government of one country and the Government 

(ff) Gihiiher, vol. ii. pp. 163-161, 

Vattei, 1. ii. c. ii. s, 80. 

Jl^er, p. 133, s, 71. 

Kluber, vol. i. s. 140. 

(6) Gunther, vol. ii. p. 16J1. 

Dumont, C. tUpl. t. v. ». i. p. 464:. 

(c) Martens, Jtec, vol. viii. s. 64. Ih, p, 229. 

See, too, Schmtms, C. J. G. vol. ii. pp. 1140, 1160. 



ACQUISITION OF ttlQIITS. 


389 


of anotJier is made the subject of a treaty. Sometimes the 
Government of a third Power guarantees the payment of the 
debt(